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H. R 17543 

A BILL TO ADMIT TO THE MAILS AS SECOND-CLASS 
MATTER PERIODICAL PUBLICATIONS ISSUED BY OR 
UNDER THE AUSPICES OF BENEVOLENT AND FRA- 
TERNAL SOCIETIES AND ORDERS AND INSTITUTIONS 
OF LEARNING, AND FOR OTHER PURPOSES : : : : 



e- ■ 



LETTERS AND EXHIBITS 




RELATING TO 



PUBLICATIONS OF FRATERNAL 

SOCIETIES 



UN- 
PUBLISHED BY THE COMMITTEE ON 

THE POST-OFFICE AND POST-ROADS 
March, 1910 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1910 






■V 






mo 



V 

LETTERS AND EXHIBITS RELATING TO PUBLICATIONS OF FRATERNAL 

SOCIETIES. 



February 11, 1910. 
Hon. Frank H. Hitchcock, 

Postmaster-General, Washington, B.C. 
My Dear Sir: I wish to call your attention to the testimony 
before this committee, February 4, on the subject of the House bill 
introduced by Mr. Dodds, of Michigan, giving the second-class rate 
to fraternal society periodicals. After a reference to the testimony 
submitted on the above-mentioned date, I should be very glad to 
have any comments which the department has to make on this 
subject. 

Yours, very truly, 

John W. Weeks. 



[H. R. 17543, Sixty-first Congress, second session.] 

A BILL To admit to the mails as second-class matter periodical publications issued by or under the 
auspices of benevolent and fraternal societies and orders and institutions of learning, and for other 
purposes. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That from and after the passage of this act all periodical pub- 
lications issued from a known place of publication at stated intervals, and as frequently 
as four times a year, by or under the auspices of a benevolent or fraternal society or 
order organized under the lodge system and having a bona fide membership of not less 
than one thousand persons, or a regularly incorporated institution of learning, shall 
be admitted to the mails as second-class matter, and the postage thereon shall be the 
same as on other second-class matter and no more: Provided, however, That such 
matter shall be originated and published to further the objects and purposes of such 
society, order, or institution of learning, and shall be formed of printed paper sheets, 
without board, cloth, leather, or other substantial binding, such as distinguish printed 
books for preservation from periodical publications: Provided further, That nothing 
contained in this act shall be so construed as to 'prevent such periodical publications 
from containing or carrying advertising matter, whether such matter pertains to such 
benevolent and fraternal societies and orders and institutions of learning or other 
persons, institutions, or concerns; it being the purpose of this act to give to such publica- 
tions the same rights and privileges as to being admitted to the mails as second-class 
matter as those given to and possessed by all other periodical publications and news- 
papers admitted to the mails as second-class matter. 

Sec. 2. That all acts and parts of acts in conflict herewith be, and the same are 
hereby, repealed. 



Office of the Postmaster-General, 

Washington, B.C., February 28, 1910. 
Hon. John W. Weeks, 

Chairman Committee on the Post-Office and Post-Roads, 

House of Representatives, Washington, B. C. 

My Dear Sir: In reply to your letter of February 11, 1910, 

stating that you would be glad to have any comments which the 

department has to make with reference to H. R. 17543, Second 

session Sixty-first Congress, and the testimony taken by the com- 



4 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

mittee in reference thereto on February 4, 1910, the following is 
submitted : 

The copy of the bill received by the department omits certain of 
the societies for which special provision was made in the act of July 
16, 1894, which it is assumed from a reading of the report of the 
hearing before the committee will be remedied. 

Except as noted above, the bill provides for the addition to the 
act of July 16, 1894, the following: 

Provided, farther, That nothing contained in this act shall be so construed as to 
prevent such periodical publications from containing or carrying advertising matter, 
whether such matter pertains to such benevolent and fraternal societies and orders 
and institutions of learning or other persons, institutions, or concerns; it being the 
purpose of this act to give such publications the same rights and privileges as to being 
admitted to the mails as second-class matter as those given to and possessed by all 
other periodical publications and newspapers admitted to the mails as second-class 
matter. 

The purpose of the legislation asked for, as understood by the de- 

Eartment, is to still further favor societies now specially provided for 
y the act of July 16, 1894, by having their publications classified as 
mail matter of the second class without regard to the circulation or 
the character thereof. In other words, they desire to be accorded 
the second-class rates for such publications formed of printed paper 
sheets as they for any reason may care to mail. This amounts, when 
considered in connection with the present acts of March 3, 1879, and 
July 16, 1894, to extending to these organizations, societies, etc., 
the benefits of both acts without the restrictions of either. 

It is disclosed by the report of the hearing conducted by your com- 
mittee that the representatives of the various fraternal societies con- 
tend that they are only asking for a retention of the privileges which 
they have enjoyed for thirty years or more. If the privileges were 
enjoyed prior to the passage of the act of July 16, 1894, it must have 
been under the act of March 3, 1879. Why, then, was the act of 
July 16, 1894, passed? It is hardly possible that they sought by 
additional legislation that which they already possessed. The fact 
is that although these publications may have enjoyed such benefits 
as claimed, yet under opinions of the Assistant Attorney-General for 
the Post-Omce Department (see Exhibit A), rendered prior to 1894, 
the members of societies claimed as subscribers to such publica- 
tions were repeatedly not recognized as legitimate. In this con- 
nection attention is invited to paragraph 3, section 332, of the Postal 
Laws and Regulations, edition of 1887. (See Exhibit B.) 

From the above it will therefore be apparent that the act of July 
16, 1894, was intended as a relief measure from the rulings of the Post- 
Omce Department under the act of March 3, 1879, which were sub- 
stantially the same then as now in respect of not recognizing persons 
as subscribers merely by reason of their being members of a society 
and paying dues thereto. 

The manifest purpose of Congress in passing the act of July 16, 1894, 
was to extend to fraternal and other societies the right to mail at the 
second-class rates of postage publications issued by or under their 
auspices for the purpose of communicating information, assessment 
notices, etc., relating to such societies, thereby recognizing the desira- 
bility of extending the low second-class rates to the literature of such 
organizations, but not conceding* the advisability of giving them 
unrestricted circulation coupled with general advertising rights. 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 5 

After the rendition of an opinion by the Assistant Attorney-General 
for the Post-Office Department, on January 24, 1901 (Exhibit C), cov- 
ering this question many publishers of fraternal papers applied for 
reentry under the act of March 3, 1879, and they were admitted if 
their claimed list of subscribers came within the following classification : 

(1) Where so-called subscriptions of members are paid by deducting the subscrip- 
tion price from the membership fees or dues under a provision of the constitution or 
by-laws of the organization to the effect that such part of each member's dues or fees 
is set aside to pay his subscription. 

(2) Where the subscription takes the form of a definite statement over the member's 
signature when transmitting his fees or dues that a stated portion shall be tised for 
the purpose of paying his subscription. 

(3) Where subscriptions of members of societies are paid for from funds contributed 
by the members and such funds belong to the society. 

The above rulings are contained in Circulars XX and XXI, Exhibits 
D and E, respectively. 

Under these rulings it repeatedly came to attention that the pre- 
scribed conditions were not being met ; that the expense of publishing 
the paper was merely paid out of the general funds of the society, and 
charges were made that the department was not placing a proper 
construction on the law; that unjust discrimination resulted there- 
from; and that serious injury was being deliberately done in certain 
instances. 

In this connection attention is invited to excerpts from complaints 
filed with the department. (Exhibit F.) 

Ultimately the whole question was carefully considered, resulting 
in the adoption, early in 1909, of the policy subsequently set forth 
on pages 315-316 of the Annual Report of the Post-Office Depart- 
ment for the year ended June 30, 1909 (Exhibit G), and the inclosed 
copy of ajetter addressed to Hon. A. F. Lever, M. C. (Exhibit H). 

On page 288 of the testimony before your committee Mr. Williams, 
representing the National Fraternal Press Association, read into the 
record a letter addressed to Mr. F. O. Van Galder, editor of the 
Modern Woodman, and made the assertion: 

Thus the "Home department," the "Fashion department," and the "Review of 
books" were ruled out. • 

In order that the exact facts in regard to this matter may be 
understood and that it may be clear that Mr. Williams should have 
known that the department had not ruled as he stated, I beg to 
invite your attention to the inclosed copy of a letter on this subject 
addressed to the Third Assistant Postmaster-General by Mr. Williams 
under date of January 29, 1909, and the answer thereto of February 
3, 1909 (Exhibit I), particularly the last paragraph of the letter, 
which reads as follows: 

As to the statement that a ruling was made in the Modern Woodman case that it 
"could not publish stories or serials or a household or fashion department, or any other 
matter not directly pertaining to the work or interest of the order," you are informed 
that the information you have obtained is entirely erroneous, and this question was 
not passed upon in the case in question. 

Other correspondence pertinent to this subject with Mr. Williams 
and Mr. Clinton C. Hollenback, president and secretary-treasurer, 
respectively, of the National Fraternal Press Association, is also 
submitted as Exhibit J. It is deemed proper to say that neither of 
these gentlemen accepted the invitation of the department to appear 
for a discussion of this subject. 



6 SECOND-CLASS MAIL — LETTERS, EXHIBITS, ETC. 

From the above it will be seen that if fraternal and other pub- 
lications referred to in the testimony taken by your committee con- 
tain the matter which the various representatives state it is desired to 
publish therein, and the same meet the requirements of the act of 
March 3, 1879, in so far as circulation is concerned, application for 
entry thereof under that act would receive favorable consideration. 
Many fraternal publications are now entered under the act of March 
3, 1879, and have apparently little difficulty in meeting the require- 
ments pf the law. 

It seems that the publishers, from their testimony before your com- 
mittee, are laboring under the belief that they are being discriminated 
against by the department with reference to the act of Masch 3, 1879, 
and their appearance before you is stated to be to obtain for them 
certain rights which the ordinary publishers enjoy, but which these 
fraternal publishers do not enjoy. The fact is, as has been shown 
in Exhibit F, that for several years prior to 1909 the ordinary pub- 
lisher had just cause for complaint, because of the extension of the 
privileges of the act of March 3, 1879, to publishers of publications 
specially provided for in the act of July 16, 1894, without the necessity 
of meeting the requirements of the former in respect of a " legitimate 
list of subscribers.'' The present agitation arises by reason of the 
department now requiring the fraternal publishers to meet the same 
requirements that are met by publishers whose publications are 
entered under the act of March 3, 1879. Consequently, if fraternal 
organizations can not meet these requirements, they still have a 
preferential privilege of entry under the act of July 16, 1894, which is 
not open to ordinary publishers. 

Comparing the provisions of the act of March 3, 1879, and of July 
16, 1894, the one is found to be the antithesis of the other*in almost 
every essential particular. For instance, under the first the publica- 
tion must be "originated and published for the dissemination of in- 
formation of a public character, or devoted to literature, the sciences, 
arts, or some special industry;" under the other it must be "originated 
and published to further the objects and purposes" of the organiza- 
tion. The first requires a "legitimate list of subscribers," and pro- 
hibits those designed for "free circulation;" the second places no 
restriction upon the circulation of a publication. The first prohibits 
a publication "designed primarily for advertising purposes;" the 
second requires that the publication be published to "further the 
objects and purposes" of the organization, i. e., to advertise and 
promote its interests. The first provides specifically that advertise- 
ments may be inserted therein if permanently attached thereto; the 
other does not make any such provision and limits the scope of the 
publication to a furtherance of the "objects and purposes" of the 
society. 

The essence of the act of March 3, 1879, is that the publisher may 
not mail a copy of his publication to a person unless there is the 
actual demand from a subscriber thereto. Hence the right of a 
publication to entry under that act is entirely dependent upon a 
demand for the publication from a buying public, thus adhering to 
the fundamental principle of supply and demand. If the desires of 
the publishers whose publications are now entitled to entry under 
the act of July 16, 1894, are met, all of the above mentioned restric- 
tions of the act of March 3, 1879, which ordinary publishers are com- 
pelled to meet, are wholly removed. 



SECOND-CLASS MAIL LETTEKS, EXHIBITS, ETC. 7 

I question the wisdom of taking out of the hands and substantial 
control of the individual American citizen the right now enjoyed by 
him to determine whether he shall or shall not be a subscriber to a 
publication independent of a society membership. Occasionally or- 
ganizations are split into opposing factions, resulting in the members 
of one faction desiring to rid themselves of receiving the official pub- 
lication. Under the proposed legislation the desired relief could not 
be afforded unless the individual should refuse to accept the publica- 
tion, in which event the department would be compelled to transport 
the publication to the office of delivery at a cost far in excess of the 
postage paid thereon without the purpose of the law being attained. 

If this proposed bill should be enacted into a law, the publications 
entered thereunder could be circulated to whomsoever the officers of 
the society desired for any reason whatsoever, and they might im- 
mediately place in the hands of the advertisers of the country the 
free circulation of these publications entirely in the interest of such 
advertisers. This would directly result in placing the cent-a-pound 
rate of postage at the disposal of the advertisers, who must now pay 
substantially 8 or more cents a pound to circulate their advertising 
matter. For instance, the firms of Sears, Roebuck & Co. and Mont- 
gomery Ward & Co., mentioned in the hearing (p. 318), send out at 
the present time a large number of catalogues upon which they pay 
postage at the third-class rate. Under the provisions of the proposed 
law there would be no reason why these firms could not contract with 
the publishers of these papers to print the whole, or at least a portion, 
of their catalogues as an integral part of the publication and have the 
same mailed to a list of names furnished by these concerns. Further, 
even if the privileges of the second-class rates were extended only to 
copies circulated to the membership of such organizations, there 
would result a tremendous increase in mailings due to the advertising 
patronage which these organizations would be able to command, and 
which the law would not control, as there is no stricture upon the 
amount of advertising which might be inserted. Whole issues might 
be devoted to advertising. 

In this connection your attention is also invited to copies of recent 
issues of the Modern Brotherhood, published at Cedar Rapids, 
Iowa (Exhibit K), and the Lady Maccabee, published at Port 
Huron, Mich. (Exhibit L), which publications would be provided 
for in this proposed legislation. Considering the character of some 
of the advertisements appearing therein, which have been marked, 
I venture to assert that the publishers of these papers would be 
regularly importuned to send out large numbers of copies thereof to 
persons primarily for the purpose of circulating the advertisements 
appearing therein; and when it is considered that payment for adver- 
tising is usually based upon a guaranteed circulation it may very 
readily be seen that an almost unlimited circulation could be pro- 
vided for these publications in the interest of the various adver- 
tisers. 

So valuable an asset is the cent-a-pound second-class rate that I 
do not believe I am overstepping the bounds of reason in predicting 
that if the proposed law is passed societies, organizations, and 
institutions apparently within its provisions would be established 
for the sole purpose of obtaining and trafficking in that rate of 
postage on behalf of advertisers. 



8 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

It will be conceded that while the act of July 16, 1894, was passed 
in the interest of benevolent, fraternal, trades union, and educational 
organizations, it is in effect class legislation in that it extended to 
these organizations privileges not enjoyed by the ordinary publisher. 
Much criticism is continually being aimed at this act by organizations 
not benefited thereby and who regard themselves to be fully as deserv- 
ing in the matter of postage rates as the organizations particularly 
provided for. For instance, churches, public libraries, religious organ- 
izations, the blind, public schools, state and municipal educational 
organizations not regularly incorporated, the Y. M. C. A., the W. C. 
T. U., and many others which might be mentioned; and if the legisla- 
tion provided for in this bill is enacted into a law, those particular 
institutions already highly favored by the aforesaid act will be still 
more privileged and the discrimination much more apparent. 

As pertinent to this subject I invite attention to the inclosed copy 
of Circular XVII (Exhibit M), containing a decision of the supreme 
court of the District of Columbia in the case of the Chicago Business 
College v. Payne, which decision was affirmed by the court of appeals 
of the District of Columbia, wherein it is stated by Justice Barnard: 

The benevolent or fraternal societies are required to have a membership of not less 
than 1,000 persons before they can have the benefit of second-class mail rates for 
their publications, and the publications to be admitted must be originated and pub- 
lished to further the objects and purposes of the society or institution. These two 
parts of the act indicate to my mind that the benefit to be granted was one to the 
public and not to the stockholders or members of any business organization. In 
other words, the matter to be so carried was to be of a character that interested and 
benefited at least 1,000 persons, if the society was of a benevolent or fraternal char- 
acter, organized on the lodge system, and if of the other characters named, that a 
large number of recipients of the publications might be benefited by receiving useful 
information and instruction. It does not seem correct to conclude that Congress 
intended by said act to give any money-making corporation the right to cheaper rates 
of postage on advertisements for no other reason than to enable them to save on their 
expenses and thus make more money. 

If a benevolent or fraternal society having its publication entered 
under the act of July 16, 1894, were permitted to carry general 
advertisements therein in addition to the " useful information and 
instruction" referred to by the court, each member would share 
in the " money making" to the extent that his dues are reduced on 
account of the profits from such advertisements and thus, instead 
of the cheaper rates of postage being granted, as stated by the court, 
to the public, it would in effect be a grant from the Public Treasury 
to members of fraternal organizations. 

As the proposed legislation is viewed from an administrative 
standpoint, it is contradictory in itself, in that, while restricting the 
purpose for which the publication is issued to a furtherance of the 
objects and purposes of the organization, it by its terms extends the 
right to include in publications admitted thereunder general adver- 
tisements, manifestly, not published to further the objects and pur- 
poses of the society, etc., as such. 

Furthermore, in the event that it is proposed to limit the circula- 
tion of these publications to the members of the society, attention is 
invited to the fact that publications issued by "regularly incorpo- 
rated institutions of learning" and "bulletins issued by state boards 
of health," now provided for in the act of July 16, 1894, would be 
deprived of the second-class privileges which they now enjoy, as 
they have no membership. 






SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

In view of the foregoing, I am unable to favor the enactment of 
the proposed bill into law. 

Yours, very truly, Frank H. Hitchcock, 

Postmaster-General. 



Exhibit A. 

opinions of the assistant attorney-general for the post- 
office department as to the legitimacy of a list of sub- 
scribers claimed for a publication seeking entry under the 
act of march 3, 1879, made up of members of fraternal or 
other societies. 

October 14, 1890. 
Hon. A. D. Hazen, 

Third Assistant Postmaster-General. 

Sir: I am in receipt of your letter of the 12th ultimo, wherein in 
connection with paragraph 4, section 328, Postal Laws and Regula- 
tions, and section 332, Postal Laws and Regulations, you refer to cer- 
tain publications issued by societies, associations, and others, appar- 
ently in conflict with the terms of the law as embodied in such sec- 
tions. 

Under the existing postal laws and regulations, it is a matter of ex- 
treme difficulty to lay down any rule that can not be complied with, 
more or less satisfactorily, by publishers of such papers. 

To guide you in this matter, I would suggest : 

1. The subscription list should show that the publication is taken 
by the subscribers, of their own act and solicitation, or that of others 
in their behalf who thereby also assume the obligation of payment. 
The act or order of the society or of its officers publishing the paper 
will not be the act of the individual subscriber and can not be taken 
as such. 

2. There should be a subscription price for the publication paid by 
the subscriber or some one else in his behalf, separate and distinct, 
and not included in or made part of any other general lodge, society, 
or association account rendered against such subscribers b} r such 
lodge, society, or association. 

3. Such subscription price should be a charge sufficient in amount 
to prevent the paper from being classed as one where the copies 
thereof are donated to the subscribers, or circulated at nominal rates. 

A rule can not be laid down applicable to each particular case, but 
these general principles should govern the action of the department in 
passing upon the right of all publications to the privileges of the mails 
at the pound rate. 

Very respectfully, James N. Tyner, 

Assistant Attorney-General. 



10 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

April 1, 1891. 
Hon. A. D. Hazen, 

Third Assistant Postmaster-General, 

Post-Office Department. 

Sir: In reply to your letter, M-2 18.90, having reference to the 
case of the Gavel, a fraternal paper published at Portland, Oreg., I 
beg to say that the clause referred to in the opinion emanating from 
this office of date October 14, 1890, requires that the subscription 
price shall be a separate and direct charge in itself and not a part of 
any other lodge debt or account rendered againsl the subscriber 
thereto. 

If the lodge is not publishing the paper, the price of the paper 
should not be mingled with other lodge accounts taxed against the 
member and subscriber. Inasmuch as the order and paper are two 
distinct concerns, the member and subscriber should be equally 
independent, and the dues of the lodge, by whatever name they are 
known, and the price of the paper should have no relationship one 
with the other. 

Very respectfully, Jas. N. Tyner, 

Assistant Attorney-General. 



October 15, 1891. 
Hon. A. D. Hazen, 

Third Assistant Postmaster-General. 

Sir : I return herewith all the papers, including a copy of the pub- 
lication entitled "The Equitable League," published monthly by a 
company composed of the officers of the supreme court of the Order 
of the Equitable League of America, submitted with your letter of 
the 25th ultimo. 

Your inquiry is whether this publication is entitled to admission 
into the mails as second-class matter. It is admitted that subscrip- 
tions are not collected direct from those whose names appear on the 
subscription lists, but are levied as assessments on the membership. 
In the issue of September 1, 1891, which you furnish for my inspect 
tion, it is announced in an editorial that ' ' the supreme court adopted 
this paper as a means of sending the assessments to the membership 
direct from the supreme office and at the same time to provide a 
means of furnishing information directly to each member of the 
order, independent of the local court officers." 

It, therefore, seems to be treated by the organization .as a circular 
used in the enforcement and collection of assessments, and for the 
notification to the members of the amounts or conditions of the 
assessments. One of the essentials of a legitimate periodical is a 
bona fide list of subscribers, representing persons who voluntarily 
and willingly subscribe, including those who accept the publication 
as the gift of others. Collecting the subscription in the nature of 
an assessment is a compulsory collection, and can not be considered 
as constituting "sl legitimate list of subscribers" within the meaning 
of the law. 

The pound rate should be denied to The Equitable League. 
Very respectfully, 

Jas. N. Tyner, 
Assistant Attorney-General. 



second-class mail letters, exhibits, etc. 11 

August 16, 1893. 
The Postmaster-General. 

Sir: The opinion rendered by Judge Tyner on the 15th day of 
October, 1891, in which I fully concur, covers the question presented 
by you verbally to me on the 15th instant, in regard to the maila- 
bility of The Good-Fellow, as second-class matter. 

It appearing that The Good-Fellow's subscription list consists of 
500 or 600 outside of lodge subscriptions and about 10,000 subscrip- 
tions paid for by the lodge without cost to the members beyond 
regular dues, it has not a " legitimate list of subscribers" within the 
meaning of section 277, Postal Laws and Regulations. If, as Judge 
Tyner held in the opinion referred to, the collection of subscriptions 
in the nature of an assessment from members of a fraternal society 
does not constitute a "legitimate list of subscribers/ ? a fortiori does 
not constitute such a list when it is made by the lodge without any 
assessment whatever for that purpose, and payment for which is 
made out of funds arising from the regular dues. 

I will add that if it appears to you that this paper was not originated 
and is not published for the dissemination of information of a public 
character, or devoted to literature, the sciences, or arts, or some 
special industry, then it can not be admitted to the mails as second- 
class matter though it have a legitimate list of subscribers. I pre- 
sume it will not be contended that this paper is devoted to literature, 
the sciences, or arts, or to a special industry, and, if it comes within 
the purview of the statute at all, it must be because it was originated 
and is published for the dissemination of information of a public 
character. Information of a public character, as here used, I take it, 
means information that would be of interest to the public generally. 
Information for the members of a secret society would not, in my 
opinion, be information of a public character within the meaning of 
the law. And even though a paper may contain some information 
of a public character, yet if it was not originated and is not published 
for the purpose of disseminating such information, but for another 
purpose, then it is not admissible to the mails as second-class matter. 

To be more explicit: If the paper was originated and is published 
for the purpose of disseminating information of a public character, 
and the information it contains, which is intended exclusively for the 
members of the Royal Society of Good-Fellows, is thrown in as an 
incident only and it has a legitimate list of subscribers, then it is 
mailable as second-class matter; but, on the other hand, if it was 
originated and is published primarily for the purpose of giving 
information to the members of such society, and the poetic and lit- 
erary gems contained in it are thrown in, as sidelights only, then it is 
not mailable as second-class matter though it have a legitimate list 
of subscribers. 

I herewith hand you a copy of the* opinion of Judge Tyner referred 
to above. 

Respectfully submitted. 

John L. Thomas, 
Assistant Attorney-General. 



12 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

Exhibit B. 

POSTAL LAWS AND REGULATIONS (EDITION 1887). 

Sec 332. Subscription price and list requisite. — Postmasters must 
require satisfactory evidence that publications offered for mailing at 
pound rates have a legitimate list of subscribers, by each of whom, 
or for each of whom, with his consent, express or implied, payment of 
the subscription price has been made or agreed to be made. Sub- 
scription price must be shown by the publication, and will be deemed 
nominal, within the meaning of section 328, when: 

1. The publication asserts or advertises that it is furnished to sub- 
scribers at no profit. 

2. When it appears from the contents that subscriptions are not 
made because of the value of the publication as a news or literary 
journal, but because of its offers of merchandise, or other considera- 
tion substantially equal in value to the subscription price, as an 
inducement to subscription. 

3. When the publication is issued for and distributed among the 
members of a society, association, or club upon payment of regular 
dues, with no distinct and sufficient charge for the publication. 



Exhibit C. 

opinion of the assistant attorney-general for the post- 
office department, dated january 24, 1901, relative to the 
carrying of general advertisements in publications en- 
tered under the act of july 16, 1894. 

January 24, 1901. 
Hon. Edwin C. Madden, 

Third Assistant Postmaster-General. 

Sir: I have before me your letters dated November 30, 1900, and 
December 7, 1900, with which you submitted a number of specimen 
periodicals, and ask "to have a settlement of the following ques- 
tions, " viz: 

First. The right of a publisher, under the "educational" act, to insert any adver- 
tisement not pertaining strictly and immediately to the propagation of learning in 
its technical sense, as inculcating a knowledge of those branches of education which 
cultivate and enlarge the mind, as distinct from the sale of school furniture or any 
other article? 

Second. The right of a publisher, under the act mentioned, to monopolize the en- 
tire publication in airing his own particular school, making the publication essentially 
a personal business enterprise, as shown by The Messenger (one of the papers sub- 
mitted) referred to. 

The "educational act," to which you refer, is as follows: 

That from and after the passage of this act all periodical publications issued from a 
known place of publication at stated intervals and as frequently as four times a year, 
by or under the auspices of a benevolent or fraternal society or order organized under 
the lodge system and having a bona fide membership of not less than one thousand 
persons, or by a regularly incorporated institution of learning or by or under the 
auspices of a trades union, and all publications of strictly professional, literary, his- 
torical, or scientific societies, including the bulletins issued by state boards of health, 
shall be admitted to the mails as second-class matter, and the postage thereon shall be 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 13 

the same as on other second-class matter, and no more: Provided further , That such 
matter shall be originated and published to further the objects and purposes of such 
society, order, trades union, or institution of learning, and shall be formed of printed 
paper sheets without board, cloth, leather, or other substantial binding, such as distin- 
guish printed books for preservation from periodical publications. (28 Stat. L., p. 105.) 

Under this law, to entitle a paper to be sent through the mails at 
second-class rates, among other things, the matter contained therein 
" shall be originated and published to further the objects and pur- 
poses of such society, order, trades union, or institution of learning. " 
In reply, therefore, to your inquiry designated " first," I have to 
state that in my opinion a paper containing advertisements in the 
interest of other persons or concerns than the society, order, trades 
union, or institution of learning which such paper represents is not 
entitled to the privileges of the law quoted. My opinion is strength- 
ened by the fact that the act of Congress (Mar. 3, 1879, 1 Supp. 
R. S., 246) which authorizes you to accept at second-class rates cer- 
tain periodical publications having u a legitimate list of subscribers/' 
expressly states: 

That nothing herein contained shall be so construed as to prohibit the insertion in 
periodicals of advertisements attached permanently to the same. 

This proviso applies only to the act in which it was incorporated, 
and as Congress has not seen fit to insert a similar provision in the 
act of July 16, 1894, we can not place it there. 

Your inquiry designated " second" is whether periodicals which 
comply with the act of July 16, 1894, in other respects, may be 
denied second-class privileges because the publisher " monopolizes 
the entire publication in airing his own particular school, thus making 
the publication essentially a personal business enterprise," and as an 
illustration you refer to a copy of The Messenger which you 
inclosed. The Messenger referred to is simply an advertisement of 
Highland Park College, Des Moines, Iowa. It is my opinion that if 
the contents of the periodical are originated and published to further 
the object and purposes of the institution of learning, etc., under 
whose auspices the same is issued, that you can not discriminate 
against such paper simply because the entire contents of the paper 
are in the nature of an advertisement. I will add that many of these 
periodical publications which are simply published to "boom" some 
college can be denied second-class privileges under my opinion to 
you dated April 4, 1900, in which I discussed the question of the 
character of institutions to which the act of July 16, 1894, applied. 
I stated therein: 

In my judgment, the aim of the act of July 16, 1894, is to promote the interests 
of institutions of learning organized for the benefit of the public, and not for any 
company or person maintaining and conducting a school, college, or place of instruc- 
tion for the personal benefit of the owner or stockholders. 

Very respectfully, 

J as. N. Tyner, 
Assistant Attorney-General for the 

Post-Office Department. 



14 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

Exhibit D. 

CIRCULAR XX, DATED DECEMBER 30, 1901, BEING A COPY OF A LETTER 
SETTING FORTH CONDITIONS UNDER WHICH MEMBERS OF FRATERNAL 
AND OTHER SOCIETIES WILL BE REGARDED AS FORMING A PART 
OF A LEGITIMATE LIST OF SUBSCRIBERS REQUIRED BY THE ACT OF 
MARCH 3, 1879. 

C. D. 7834.] Post-Office Department, 

Office of Third Assistant Postmaster-General, 

Washington, D. C, December 30, 1901. 
Mr. F. S. Webb, 

Manager Advertising Department, Modern Woodman, 

87 Washington street, Chicago, III. 

Sir: Reconsideration of departmental letter of the 16th ultimo 
brings into view several phases of the situation not hitherto apparent. 

In that communication it was held that the Modern Woodman 
and other similar publications, issued "by or under the auspices of 
a benevolent or fraternal society or order organized under the lodge 
system and having a bona fide membership of not less than 1,000 
persons" may not, under an opinion of the Assistant Attorney- 
General for the Post-Office Department (copy inclosed herewith), 
continue to pass in the mails at the subsidiary second-class rates 
of postage while containing advertisements in the interest of other 
persons or concerns than said benevolent or fraternal society or 
order, etc. 

It appears upon analysis of subsequent representations and argu- 
ments that the withdrawal of the advertisements in question effects 
a decrease in the earning capacity of the publications mentioned and 
causes them to be handicapped seriously in competing with similar 
journals enjoying upon a subscription basis the subsidy of the second- 
class rates under the act of March 3, 1879, which law does not impose 
the restrictions as to advertising which the Assistant Attorney- 
General for the Post-Office Department rules must be applied to the 
act of July 16, 1894. 

The department is desirous that publishers entitled to the second- 
class rates for publications for which there is a public demand may 
participate equally in all the privileges pertaining thereto. Atten- 
tion is invited to the following departmental ruling, as having a 
possible bearing upon the case under consideration: 

When the claimed list of ''legitimate subscribers" upon which is based an appli- 
cation for entry of a publication to the second class of mail matter, under the act of 
March 3, 1879, is composed, entirely or partly, of members of an organization publish- 
ing the same whose subscriptions are paid by deducting the subscription price from 
their membership fees or dues, it is, for the present, allowed that they may be counted 
among the legitimate subscribers enumerated in articles 309 and 310, pages 1037 and 
1038, January, 1901, Postal Guide; provided it be shown that there is a provision of 
the constitution or by-laws of the organization to the effect that such a part of each 
member's fees or dues is set aside to pay his subscription; or when the claimed sub- 
scription takes the form of a definite statement over the member's signature, when 
transmitting his fees or dues, that a stated portion shall be used for the purpose of 
subscription payment; or when it is arranged that an officer of a local division of the 
organization acts as agent for the publisher and sends the names and addresses of the 
members, as subscribers, to the publication office accompanied by the subscription 
price for each definitely set forth as such. 



SECOND-CLASS MAIL— LETTERS, EXHIBITS, ETC. 15 

If subscriptions of members of the Modern Woodmen of America 
to The Modern Woodman are made so as to come under one or all 
of the ways held in the above ruling to be legitimate, and the number 
of such and other legitimate subscriptions approximates (as required 
by the Postal Laws and Regulations) 50 per cent of the number of 
copies regularly issued and circulated, by mail or otherwise, and the 
publishers can submit a publication consisting of current news or 
miscellaneous literary matter, or both, of a general character, there 
is good reason to believe that entry to the second class might be 
effected under the provisions of the act of March 3, 1879, in which 
case the advertisements ineligible under the act of July 16, 1894, 
may continue to be printed without jeopardizing its status. 

The ruling embodied herein applies also to publications of trades 
unions and other organizations mentioned in the act of July 16, 1894, 
whose members pay their subscriptions to the official journal under 
the methods held legitimate. 

If the publisher of the Modern Woodmen and of the other class of 
publications mentioned herein desire to surrender their entry under 
the act of July 16, 1894, finding that they are able to meet the require- 
ments as to subscription list, the department will consider an appli- 
cation for renewal of such entry under the act of March 3, 1879, to be 
submitted through the postmaster at the office of publication. 

You are advised of this matter because it is deemed in justice due 
you. Many publications of fraternal societies are now passing in the 
mails under the act of March 3, 1879, and are carrying foreign adver- 
tising because they are able to comply with the requirements herein 
laid down. Your publication and the others mentioned shall have 
the same privilege if they can comply with the conditions. 
Very respectfully, 

Edwin C. Madden, 
Third Assistant Postmaster-General. 



Exhibit E. 

circular xxi, dated february 21, 19^3, being a copy of a let- 
ter setting forth additional conditions under which 
members of fraternal and other societies will be regarded 
as forming a part of a legitimate list of subscribers 
required by the act of march 3, 1879. 

Post-Office Department, 
Office of Third Assistant Postmaster-General, 

Washington, D. C, February 21, 1903. 
Edwin O. Wood, 

President National Fraternal Press Association, Flint, Mich. 
Sir: In answer to your letter of February 4, you are informed that 
the department recognizes the inequality of privilege and conditions 
under existing statutes affecting fraternal publications, part of which 
are entered to the second class of mail matter under the act of March 
3, 1879, and another part under the provisions of the act of July 16, 
1894. As you are aware, this condition is due to law and not to a 
departmental regulation. 



16 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

Those fraternal periodical publications which came into existence 
prior to the act of July 16, 1894, and secured entry to the second 
class under the provisions of the act of March 3, 1879, are, of course, 
entitled to all the privileges conferred by that act, which includes 
the carrying of advertising matter, while on the other hand, those 
fraternal publications which have come into existence since the pas- 
sage of the act of July 16, 1894 (which provided specially for that 
class of publications), may not, under the opinion of the Assistant 
Attorney-General for the Post-Office Department, carry advertising 
matter other than that of their own institutions. A great number 
of fraternal publications are now being carried in the mails at the 
second-class rates under the conditions prescribed by the act of 
March 3, 1879, and a number (probably less than 50 per cent of the 
whole) have been entered under, and are subject to the provisions 
of, the act of July 16, 1894. 

In order to correct as far as possible the unsatisfactory and anoma- 
lous situation complained of in your letter, it has been determined to 
recognize as legitimate and within the provisions of the act of March 
3, 1879, all subscriptions made under the following rule, provided 
no abuse of the second-class mailing privilege results : 

Where the claimed list of legitimate subscribers upon which is based an application 
for entry of a periodical publication of a fraternal society to the second class of mail 
matter under the act of March 3, 1879, is composed entirely or partly of members of 
the fraternal society publishing the same and whose subscriptions are made direct by 
the members of such society, or where such subscriptions are paid for from the funds 
of such fraternal society, which funds are contributed by the members and belong to 
such fraternal society, it is allowed that such subscriptions are legitimate within the 
meaning of the law, and that they may be counted among and as legitimate sub- 
scribers enumerated in Departmental Circular Ilia and section 436 of the Postal 

The foregoing applies to subscriptions for members only. Sub- 
scriptions for such publications obtained from persons who are not 
members of such societies are not affected by this ruling. It will be 
understood that in order to secure admission to the second class of 
mail matter under the provisions of the act of March 3, 1879, the 
publication, in addition to having a " legitimate list of subscribers," 
must conform to the other requirements of the statute. 

There has been delay in responding to your letter of February 4, 
owing to the tremendous pressure of public business. This delay, 
however, appears to be immaterial, because your letter of February 9 
to fraternal journals contained notice of the above ruling. 
Respectfully, 

Edwin C. Madden, 
Third Assistant Postmaster-General. 

a Circular III has been superseded by Circular XXV, dated December 16, 1905. 
Laws and Regulations, herewith inclosed. 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 17 

SUBSCRIPTION PRICE AND LIST REQUISITE (COPY OF SECTION 436, 
POSTAL LAWS AND REGULATIONS). 

[Under act of March 3, 1879.] 

Sec. 436. Postmasters must require satisfactory evidence that pub- 
lications offered for entr^ as second-class matter have, under section 
428, a legitimate list of subscribers, approximating 50 per cent of the 
number of copies regularly issued and circulated, by mail or other- 
wise, made up not of persons whose names are furnished by adver- 
tisers or by others interested in the circulation of the publication, but 
of those who voluntarily seek it and pay for it with their own money, 
although this rule is not intended to interfere with any genuine case 
where one person subscribes for a definite period of several issues for 
a limited number of copies for another. 

2. The subscription price of a publication must be shown thereon 
and will be deemed nominal within the meaning of section 428 
when — 

(a) The publication advertises or asserts that it is furnished to sub- 
scribers at no profit, or irrespective of payment of the subscription 
price ; 

(b) When it appears from the contents or from the extrinsic induce- 
ments offered in combination with the publication that the circulation 
of the publication is not founded on its value as a news or literary 
journal, and that subscriptions are not made because of such value, 
but because its offers of merchandise or other consideration result, 
in effect, in its circulation at apparently a nominal rate. m 



circular xxv. 

Post-Office Department, 
Office of Third Assistant Postmaster-General, 

Washington , D. C, December 16, 1905. 

ABUSES OF THE SECOND-CLASS MAILING PRIVILEGE ILLEGITIMATE 

LISTS OF SUBSCRIBERS WHAT MAY BE INCLUDED IN A LEGITIMATE 

LIST EFFECT OF PREMIUMS, GIFTS, COMBINATIONS, ETC. 

The second class of mail matter is limited by law to "newspapers 
and other periodical publications," and the section further prescrib- 
ing the conditions under which such publications shall be admitted 
to that class among other things requires each to have ' ' a legitimate 
list of subscribers." The act also prohibits admission to that class 
of "regular publication's designed primarily for advertising purposes 
or for free circulation or for circulation at nominal rates," even 
though having a legitimate list of subscribers. The paragraph con- 
taining these provisions is as follows: 

Fourth. It must be originated and published for the dissemination of information 
of a public character, or devoted to literature, the sciences, arts, or some special 
industry, and having a legitimate list of subscribers: Provided, however, That nothing 
herein contained shall be so construed as to admit to the second-class rate regular 
publications designed primarily for advertising purposes, or for free circulation, or 
for circulation at nominal rates. (Act of Mar. 3, 1879, ch. 180, sec, 14, 1 Supp. R. S., 
p. 246 — sec. 428, Postal Laws and Regulations.) 

25488— exhibits— 10 2 



18 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

In numerous ways these indispensable requirements as to a legiti- 
mate list of subscribers and this positive prohibition against advertis- 
ing sheets and those sold at a nominal rate or circulated free have 
been evaded. The result is that publications which are not in fact 
newspapers or periodicals; combination advertising circulars clothed 
with just enough reading matter to appear to be periodicals; house 
organs, and others chiefly designed for advertising purposes and 
having no legitimate lists of subscribers, and others for which no real 
subscription price is asked, have secured those rates intended only for 
real newspapers and periodicals issued in response to an actual public 
demand, evidenced by the existence of a legitimate list of subscribers 
at subscription rates fairly indicative that the publications are sold 
upon their intrinsic worth as newspapers and periodicals. 

The devices for evading the law as to actual subscribers and as to 
the prohibition against circulation free or at nominal rates are mainly : 

(a) The inducement of alleged subscriptions by means of premiums, 
gifts, or other extraneous considerations given by the publisher to the 
pretended subscribers, the effect of which is that the subscription 
price is substantially, if not wholly, returned, the advertised price 
being a mere fiction. 

(b) The inducement of alleged subscriptions by so-called clubbing 
arrangements, the effect of which is that one or more of the publica- 
tions in the combination are practically given free or at a nominal 
rate. 

(c) The inducement of alleged subscriptions actually given free 
upon the recipient's signing an order to the publisher alleging pay- 
ment or making a promise of payment upon which there is no collec- 
tion and no real intention to collect. 

(d) The inducement of alleged subscriptions in connection with 
the sale of goods the bill for which contains an item for subscription 
to the publication, which item is only a part of the price of the goods, 
there being no actual charge for subscription. 

(e) Alleged subscriptions which are themselves gifts or premiums 
given by the publisher to the so-called subscriber in consideration of 
the purchase of merchandise sold by the publisher in his other 
business. 

(/) Alleged subscriptions of persons whose names have been secured 
by the publisher from the lists of defunct publications which defaulted 
on their subscription contracts. 

(g) Alleged subscriptions based, without any order, contract, or 
action on the part of the addressees, upon the sending of copies of 
publications with a notification that failure to direct discontinuance 
by a fixed date will constitute such addressees subscribers. 

(h) Alleged perpetual subscriptions. 

(i) Alleged subscriptions for numbers of copies for their patrons or 
prospective patrons or other third persons by business houses, com- 
mission houses, stock exchanges, boards of trade, campaign com- 
mittees, candidates for office, clubs, organizations, or individuals, 
interested in the circulation of the publication for advertising or 
other purposes. 

(j) The carrying indefinitely on a pretended credit of persons who 
have once subscribed. 

By the foregoing and other means for artificially inflating the cir- 
culation of a publication by getting it into the hands of persons free 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 19 

or at a nominal rate and then counting such persons as actual sub- 
scribers, for each of whom an additional sample copy may be circu- 
lated, abuses of the second-class privilege have been created and 
maintained. 

The object of these artificially forced circulations is nearly always 
to promote some general or particular advertising purpose or by the 
appearance of large circulation to be able to demand high prices for 
advertising. In all such cases the result is the advancement of 
private interests at the public expense, for all copies sent in the mails 
in fulfillment of fictitious subscriptions as well as sample copies based 
thereon are transported at the pound rate unlawfully and at great 
expense to the Government. 

The positive requirements of the Jaw must hereafter be properly 
observed. Manifestly, if the list of subscribers must be legitimate it 
must be wholly so. It is not sufficient to have some percentage of 
the list composed of actual subscribers. The entire list must consist 
of actual subscribers. The impression that form only need be 
observed and that substance is immaterial is erroneous. 

In enforcing this requirement of law as to a legitimate list of sub- 
scribers the following will be recognized as constituting actual 
subscriptions : 

First. Direct subscriptions to the publisher by the subscriber when 
paid for by him. 

Second. Subscriptions to the agent of the publisher when actually 
paid for by the subscriber himself. 

Third. Copies regularly sold by newsboys, or local agents, or news 
agents. 

Fourth. Copies regularly sold over the publisher's counter. 

Fifth. Copies sent as bona fide exchanges with other publications 
admitted to the second class, one copy for another. 

Sixth. Individual subscriptions designed as bona fide gifts when 
paid for by the donors for the benefit of the recipients. Such sub- 
scriptions will be limited strictly to those coming within that defini- 
tion, and will not be permitted to be used as a cover for an advertising 
or other purpose of the publisher or donor. Under this same rule 
and limitations the publisher himself may become the donor of such 
gift subscriptions, but in all cases the proportion of these subscriptions 
to the whole list will be considered and given weight in determining 
the legitimacy of such lists. In this latter class may be included 
copies sent to prove insertion of advertisements. 

NOTES. 

It is not required that subscriptions shall be paid in advance, but 
where credit is given it is expected to be in the ordinary course of 
business and not for the purpose of creating fictitious subscriptions or 
otherwise evading the requirements of the law as explained in the 
foregoing. Expired subscriptions may be carried when necessary for 
a sufficient time to enable the publisher to ascertain whether it is the 
intention to renew. After the expiration of such reasonable time they 
will no longer be recognized as actual subscriptions, and in all cases 
the ratio of expired subscriptions to the whole list, irrespective of the 
time carried, will be considered and given weight in determining the 
legitimacy of lists of subscribers and the primary design of the 
publication. 



20 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

The inducement of subscriptions by premiums, gifts, service, or 
other extraneous considerations to subscribers, will be carefully scru- 
tinized in respect of its effect upon the legitimacy of the list as a 
whole, and upon the question of the primary design of the publication. 

The publisher is free to fix his own price of subscription, save only 
that it may not be so low as to come within the prohibitory clause of 
the statute. It should appear, in order not to fall within that pro- 
hibition, that there is a substantial exchange of value in respect of 
the newspaper or periodical itself between the publisher and the sub- 
scriber, under whatever circumstances or in whatever combination the 
publication is alleged to be subscribed for. 

The publisher having fixed the price of his publication will be 
regarded, in the absence of evidence to the contrary, as having done 
so in good faith and according to its value. Any reduction, there- 
fore, from such advertised price will be carefully considered in its 
bearing upon the question of the primary design of the publication in 
respect of advertising and its circulation at a nominal rate. Wherever 
such reduction, by whatever means brought about, is so great that 
the publication is sold at less than half the advertised price, it will 
be taken as reducing it to a nominal rate; and in cases where the 
subscription price as fixed by the publisher appears to be already 
lower than the customary or general market price for publications 
of the same class, any reduction from that price, by whatever 'means 
brought about, will be taken as reducing it to a nominal rate. 

If premiums be used, their cost to the publisher is immaterial. 
Their market value to the recipient will be considered as affecting 
the price of the publication in proportion. The effect of the premium, 
gift, service, etc., may' not be evaded by the device of placing no 
market value upon it. 

In determining whether or not a publication comes within the pro- 
hibitory clause of the statute as designed primarily for advertising 
purposes, etc., consideration will be given, among other things, to the 
publisher's methods of securing alleged subscribers through third 
persons to whom extraordinary offers of compensation in the form 
of merchandise, etc., are made. Where such compensation, taken 
at its apparent value, effects a return to the agent of the whole or a 
substantial part of the subscription price paid, and it appears that the 
subscribers, knowing that fact, have subscribed really in order to 
obtain for the agent the benefit thereof, the price paid by such sub- 
scribers will be deemed to be affected to the extent of the apparent 
value of such compensation. 

It is unlawful for a publisher or a news agent to mail, ostensibly for 
himself and at the rates accorded by law to him, as subscribers' copies 
or as alleged samples, copies of his publication purchased by and really 
the property of others, and sent in the mails on their behalf. A pub- 
lisher is not prevented from acting for a purchaser, but the lawful 
rate of postage — 1 cent for each 4 ounces or fraction thereof — must 
be paid upon all copies so sent in the mails to third persons, the same 
as if they were mailed by the purchaser himself. 

In the case of new publications applying for admission to the second 
class, entry can not be granted unless the legitimate list of subscribers 
equals 50 per cent of the whole number of copies regularly printed and 
circulated by mail or otherwise; and to sustain a second-class status 
at least that proportion of subscribers to the whole circulation must 
thereafter be maintained. 



SECOND-CLASS MAIL* LETTERS, EXHIBITS, ETC. 21 

It is optional with a publisher to print more than enough copies to 
supply actual subscribers. Copies printed in excess of the number 
required to supply actual subscribers may, up to an equal number, be 
mailed at the pound rate as sample copies to persons who are not 
subscribers for the purpose of getting them to subscribe or to adver- 
tise in the publication, provided each copy is plainly marked " Sample 
copy" on the exposed face of the publication or on its wrapper. 

Postmasters must bear in mind that in the application of the fore- 
going the business methods of publishers are not, in themselves, sub- 
ject to interference. Only when the character of a publication or its 
circulation, as affecting its second-class privilege, is directly in issue, 
is it necessary, as a matter of administration, to consider or inquire 
what effect, if any, upon such character results from the methods 
employed. In all cases it is the effect of the method, and not the 
method itself, which is the subject of inquiry. 

Each case will be decided upon its own special facts, the foregoing 
circular being designed as a guide to the practical application of the 
statute in a uniform manner. Strict compliance in all respects with 
the requirements herein mentioned will not be exacted until after 
April 1, 1906. But while opportunity is thus to be afforded to pub- 
lishers fully to adjust their publications to these requirements, this is 
not to be taken as excusing or condoning either flagrant abuses of the 
second-class privilege or such as amount to criminal violations of the 
law; and in every case this department reserves complete liberty of 
action in protecting the interests of the Government under the law. 

Postmasters will at once inform all publishers of newspapers and 
periodicals in their respective cities of the purport of these instructions 

Edwin C. Madden, 

Third Assistant Postmaster-General, 



Exhibit F. 

complaints of publishers as to unjust discrimination in favor 
of publications provided for by the act of july 16, 1894. 

October 26, 1908. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, 

Washington, D. C. 

Dear Sir: It is concerning the right of * * * to carry foreign 
advertising and be conducted as an advertising medium, when pass- 
ing in the mails as second-class mail matter, whether under the pro- 
visions of the act of 1894 or those of 1879 that it is desired to enter 
objection; and in that regard the following information and argu- 
ment is submitted in opposition to the granting of that privilege : 

The * * * j s published periodically by the benevolent and 
fraternal society known as * * * . No question is raised and no 
opposition is offered to the granting of the privileges of the second- 
class of mail matter to * * * , under the provisions of the act 
of 1894, as interpreted by the Assistant Attorney-General for the 
Post-Office Department in his opinion of January 24, 1901, and by 
the courts so far as they have interpreted that act. 



22 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

Prior to the passage of the act of 1894 such publications were not 
considered admissible to the mails as matter of the second class. 
Substantially they were then, as now, bulletins of information con- 
cerning the affairs of the organizations by whom published for the 
information of and for distribution to the membership thereof. 
They lacked several essentials or qualifications for matter of the second 
class, but more especially a reading clientele; in other words, legiti- 
mate lists of subscribers. 

Many efforts were made to influence the department to accept the 
lists of membership in these fraternal and benevolent organizations 
as constituting lists of subscribers to the publications issued by them, 
and otherwise to " construe' 7 the publications themselves as meeting 
the requirements of the act of 1879. Generally, but not altogether, 
the department rightly resisted these impositions upon the law, since 
they would break down and in effect destroy the chief qualification 
for matter of the second class; namely, that of having bona fide lists 
of reading subscribers paying the subscription price and secured on 
the merits of the publications themselves as news or literary journals, 
independent of other considerations. 

The act of 1894 made provision for the admission to the second 
class of a number of definite kinds of periodicals specially distinguished 
as of a nonpublic character, without the requirement of having legit- 
imate lists of subscribers and without the prohibition against free 
circulation. Unquestionably it was the purpose of Congress in that 
act to give the regular periodical publications of the organizations 
and institutions named the privileges of the second class, although 
they are of a private nature and are distributed free, as distinguished 
from publications of a public character, attracting a paying patron- 
age upon their merits as such. The very passage of the act of 1894 
is itself plainly a confirmation of the view that Congress distinguished 
clearly between the publications of the different types, namely, those 
of public and those of nonpublic or semipublic character; and it is 
a confirmation of the view that Congress did not intend that all should 
stand upon the same plane in that classification. Under that act the 
department must not only require compliance in the publication 
itself, but compliance on the part of the publisher as well, a condition 
which does not obtain under the act of 1879. It takes no account of 
who the publisher may be. 

Subsequently the periodical publications entered under the act of 
1894 began the soliciting and carrying of general advertising after 
the manner of and in competition with those entered under the act of 
1879 and complying with the provisions and restrictions of that act. 
The practice developed into an abuse of serious proportions; and it 
constituted an injustice to publishers in general and a wrong to the 
Government. The department then stopped the practice. Its 
action was based on an opinion of the Assistant Attorney-General 
for the Post-Office Department, to the effect that the inclusion of 
advertising in such publications rendered them ineligible to the second 
class under the act of 1894. The following are the essential para- 
graphs of the opinion: 

Under this law, to entitle a paper to be sent through the mails at second- 
class rates, among other things, the matter contained therein "shall be origi- 
nated and published to further the objects and purposes of such society, order, 
trades union, or institution of learning." In reply, therefore, to your inquiry 
designated "first," I have to state that in my opinion a paper containing advertise- 



SECOND-CLASS MAIL LETTEBS, EXHIBITS, ETC. 23 

ments in the interest of other persons or concerns than the society, order, trades 
union, or institution of learning which such paper represents is not entitled to the 
privileges of the law quoted. My opinion is strengthened by the fact that the act 
of Congress (March 3, 1879, 1 Supp. R. S., 246) which authorizes you to accept at 
second-class rates certain periodical publications having a "legitimate list of sub- 
scribers," expressly states: "That nothing herein contained shall be so construed as to 
prohibit the insertion in periodicals of advertisements attached permanently to the 
same." This proviso applies only to the act in which it was incorporated, and as 
Congress has not seen fit to insert a similar provision in the act of July 16, 1894, we 
can not place it there. 

That opinion is generally accepted as a correct interpretation of 
the act of 1894. It supports 'exactly the view heretofore expressed. 
Practically the courts have intimated the same view. Although not 
ruling directly on that proposition, they have in cases involving an 
interpretation of that act indicated indirectly the same trend. In 
the case of the Chicago Business College v. Payne, Postmaster- 
General (see circular 17 submitted herewith), for instance, it was 
held that the institutions mentioned in that act did not include any 
organized for private gain. The court of appeals on review held to 
that opinion. It was about the same thing as the Attorney-General 
said, differently expressed. 

Certain it is then, in all reason, that it was not the purpose of 
Congress to confer upon the fraternal organizations specified in the 
act of 1894, the right to enter the mails with their kinds of periodical 
publications on a plane with publishers of those provided for in the 
act of 1879. 

The fraternal periodicals in question are simply a class or kind of 
bulletins issued by the members through their chosen representatives 
to themselves. The membership is therefore, itself, the " publisher 
thereof." They are originated and issued to communicate informa- 
tion of a private or personal nature from the authorities of the 
organizations, who represent the membership, to the membership, 
concerning their individual affairs. But for this, the essential 
element of their existence and prime consideration of their issuance, 
they would never have been brought into being and would not 
exist. They are not recognized by the general public as news or 
literary journals, because the scope, purpose, and scheme of their 
.existence does not concern or interest the general public. 

The periodical publications coming under the provisions of the act 
of 1879 are originated and published for the dissemination of informa- 
tion of a general or special public character, and they are brought 
into being and their existence depends upon public recognition of 
them as such, evidenced by lists of subscribers induced upon the 
merits of the publications themselves in their respective fields. In 
the case of the fraternal periodicals, if the membership, or a majority 
of it, so elects, not only the " publisher thereof," but the periodical 
itself would cease to exist. In other words, the publishers or fraternal 
periodicals themselves constituting the so-called Jists of subscribers 
to their own periodicals, are under no contract or obligation by reason 
of such subscriptions, to furnish the equivalent of the subscription 
price to themselves, as in the case of the publisher of a periodical 
coming under the act of 1879. In the latter case the subscription 
constitutes an obligation of the publisher to a second party which 
must be met, and it may be enforced in law. 



24 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

Publishers of fraternal periodicals, being nothing more or less than 
the so-called subscribers to them, do not need and do not, as a mat- 
ter of fact, consider the taste or requirement of a reading clientele. 
The so-called legitimate lists of subscribers are the same, whether 
the publications be of literary value or of no literary value. The 
alleged subscription is compulsory, and not voluntary, as in the case 
of publications coming under the act of 1879. They must secure 
subscribers upon their merits, as they appeal to the public, regardless 
of the conditions or circumstances of the publishers themselves. 
These distinctions, are so patent as to need no argument. The pro- 
viso of the act of 1894 makes the distinction clear: 

Provided further, That such matter shall be originated and published to further 
the objects and purposes of such society, order, trades union, or institution of learn- 
ing, etc. 

This clause clearly separates publications coming under this act 
from those coming under the act of 1879. The Assistant Attorney- 
General's opinion, previously quoted, confirms this statement, and 
the courts have held, as you are aware, that the privileges of the 
act of 1894 do not extend to publications issued as money-making 
enterprises. On the other hand, publications contemplated by the act 
of 1879 are published as money-making enterprises, and they are 
subject, on that account, to conditions which do not apply to those 
coming under the act of 1894. 

When the abuse of fraternal publications, having no legitimate 
lists of subscribers, but carrying advertising in competition with 
the publications entered under and complying with that and other 
provisions of the act of 1879, had been corrected, the department 
was then induced to undo all it had accomplished, by ruling that 
such periodical publications, when they contained information of a 
general public character, might be entered as second class under the 
provisions of the act of 1879, the lists of membership being " con- 
strued" as legitimate lists of subscribers, under some device exhib- 
iting the form but lacking the substance of genuine subscriptions. 

This was to get around the ruling of the Assistant Attorney-General 
as to the carrying, of foreign advertising and the disposition of the 
courts to the effect that the act of 1894 was not intended to confer 
the right of the second class upon publications issued for or operated 
in any manner for private gain or as money-making enterprises. 
This ruling permitted them to be entered under the act of 1879 and 
to again carry advertising in competition with journals of a general 
public character. 

The plain intent and purpose of Congress in the Act of 1894 was 
thus nullified, and the intent and purpose of the law of 1879 was 
circumvented; and a serious wrong was done the Government and 
taxpayers as well as publishers in general. That ruling also set at 
naught the principle laid down by the court when it said in the case 
of Conant v. Postmaster-General that — 

The law must not only, however, be honestly executed by the department itself, 
but it must be honestly and faithfully obeyed by the person who is seeking to obtain 
the benefits of its privileges. He can not evade it by any sort of device. He must 
show the utmost good faith. 

This expression of the court in the light of what has been so far 
shown will, it is believed, seriously impress you. No comment will 
be necessary. 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 25 

The foregoing is recited merely as a sort of history of this question. 
It refers to the past and is important in showing the wrongs that have 
been done. It furnishes also a guide for the future; and it is the 
future with which this petition has to do; it is the all-important 
consideration. * * * 



April 4, 1908. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, 

' Post-Office Department, Washington, D. C. 

My Dear Sir: * * * A matter that I wish particularly to 
present to you is the following : During recent years 'organization" 
medical journals have developed. That is, the American Medical 
Association has a journal called the Journal of the American Medical 
Association, a large weekly medical journal of large circulation and 
influence ; many of the state medical associations have state organs ; 
and these make up what is known as the organization medical press, 
consisting at present of the Journal of the American Medical Associa- 
tion (weekly), and about 20 organs of state medical associations, 
each published monthly. These organization journals have de- 
veloped considerable opposition to the old-line independent medical 
journals, so that there is almost a schism between the two, though I 
have endeavored to unite all together, to work harmoniously for 
science and the interest of the .medical profession. The American 
Medical Editors' Association was formed long before the organization 
medical press arose. Several organization medical editors are now 
members of it. But there is this radical difference between the sub- 
scription methods of the two classes: Each organization journal is 
sustained by the organization which it represents, being free to mem- 
bers; a certain portion of the yearly dues of each member being ap- 
propriated for the journal. So you see, an organization journal is 
sustained by the members of the organization ; while an independent 
journal has to hustle for subscribers wherever it can get them, de- 
pending upon merit and enterprise for its success. Xow the yearly 
dues of members of medical societies are usually paid at the meeting 
time, which may be at or near the end of the year covered by said 
dues. So here is a credit longer than your four months for subscrip- 
tions on monthly publications. If that is permitted, and the four 
months credit limitation forced upon independent medical journals, 
that would work an unfair discrimination against the independent 
medical monthlies. This is a point that I wish to have your opinion 
and ruling upon, in order to report it at the next meeting of our asso- 
ciation. * * * 

Very sincerely, yours, . 



May 23, 1908. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, 

Eleventh street and Pennsylvania avenue, Washington, D. G. 

My Dear Sir: Allow me to say that my interview with you and 
your head assistant, Mr. Bacon, in your office on May the 14th, im- 
pressed me exceedingly favorably. We hear much about corruption 
in politics; but I saw on that day much evidence of efficiency in pub- 



26 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

lie administration. Not only efficiency, but a reasonable and tolerant 
spirit that does not always accompany the acts of public officials. 
What we want in public administration is efficiency without officious- 
ness, and I feel that we have it in your very important office. 

While my interview with you was exceedingly satisfactory, I left 
your office feeling that I owed a duty to you to give you some further 
information concerning the kind of medical publications that have 
arisen during recent years, collectively called the organization med- 
ical press; that is, medical journals issued by and belonging to 
medical associations. While I have been exceedingly busy since I 
left your office, preparatory to attending the editorial meeting soon 
to be held in Chicago, I have gotten together samples of most of these 
publications, which I am sending you by express, prepaid. I am 
sending you samples of 16 of them. There are now in existence about 
22 or 23 of them — their creation has been so rapid that I have not 
been able to keep posted as to the exact number. The leading one, 
of course, is the Journal of the American Medical Association. You 
will find it on top of the package which I am sending you, opened at 
the place where terms are given, the part which will particularly 
interest you being marked in blue pencil and red, so you can find it 
without trouble. You will see that here the published terms are 
"$5 for the annual dues and subscriptions to the Journal." Accord- 
ing to the understanding of the law which I got in your office, there 
seems to be no question but that such a publication should carry no 
advertisements, or should have a separate price for the Journal, dis- 
tinct from the annual dues, or such journal should not be received at 
the second-class rate of postage. One of these three alternatives, it 
seems, can not be escaped. Down a little farther in the same colomn 
you will see the notice concerning advertisements, marked with blue 
pencil. 

Immediately beneath the top journal which I have just been 
describing you will find the New York State Journal of Medicine, 
with similar notice (though worded a little differently), marked 
in both blue and red. Also, the paragraph concerning advertise- 
ments on same page, marked in blue. Immediately beneath this 
you will find the Journal of the Michigan State Medical Society, 
with similar notices, marked in red and blue. Beneath this you will 
find the Journal of the Medical Society of New Jersey, with a similar 
notice, marked in red and blue Beneath this you will find the Journal 
of the Indiana State Medical Association with similar notice, marked 
in red and blue. Beneath this you will find the Iowa Medical Jour- 
nal with this notice marked in red and blue, "Free to members of 
the I. S. M. S." Beneath this you will find the California State Jour- 
nal of Medicine, opened at an advertising page with notice concern- 
ing its value as an advertising medium. This journal has been 
particularly bitter, intolerant, and vindictive toward the independent 
medical press. Beneath this you will find the other samples, with no 
particular markings upon them, because it seems that in these 
particular issues the terms are not published in detail. But they are 
all issued on the same general plan, and what is true of those that I 
have opened out to you is true of all the rest; that is, the general 
plan of all these publications is for the publication to act as the organ 
of the society, publish its transactions, including papers read before 
said body, and in all other proper ways act as the organ of the society, 
the pay for the journal being included in the membership dues. The 



SECOND-CLASS MAIL — -LETTERS, EXHIBITS, ETC. 27 

same is true also of the others in existence, samples of which are not 
included in this package, because it has not been convenient for me to 
lay my hands on them recently. But, as I said before, altogether 
there are about 22 or 23 of them in this country, the "king bee" 
being the Journal of the American Medical Association — the organ of 
the American Medical Association, of which I am proud to be a mem- 
ber. The others are organs of state associations. 

Please do not understand that I am trying to take an unfair advan- 
tage of my competitors in business by this demonstration to you. I 
do it freely and aboveboard and have no particular objection to hav- 
ing it known just what I am doing, for I never work in secrecy; but 
perhaps you will not consider it necessary or important to make known 
the origin of your information. The information has been open and 
public all these years; but your office has perhaps simply been too 
busy to look into the matter. I am simply aiding your office in dis- 
covering information which you will doubtless consider interesting 
and important. And if you are very busy on larger matters, which 
you usually are, allow me to suggest that you turn this matter over 
to your excellent chief assistant, Mr. Bacon, who seems to be pretty 
well acquainted with the matter already. 

As I intimated to you while in your office, the organization medical 
journals are very active and powerful competitors of the independent 
medical journals, and while there has been quite an active war between 
some of them on each side, I have not been disposed to put on war 
paint, as I see that both classes have important functions to perform. 
And I have been simply attending to my own work in the best way 
that I could, and encouraging all other good work, whether it be done 
by the organization medical press or the independent medical press. 
I have no enemies to punish on the opposing side, and I claim nothing 
for myself except the legitimate results of honest effort. I go upon 
the theory that as long as my efforts deserve success, success will come. 
But whenever I am unable to hold up my end in a free and open field, 
I should go down without complaint. ♦ 

The essence of the question involved is this : That in order to com- 
mand the privilege of second-class rate of postage and carrying adver- 
tisements, these association journals must have a separate subscription 
price distinct from the annual dues. This seems to be just, for these 
papers ought to be put upon the basis of their merits, just like ours, 
and be required to demand and collect a subscription price. 

Asking your pardon for this long letter, and with regards to both 
you and Mr. Bacon, I am, 

Very sincerely, . 



June 11, 1908. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, Washington, D. C. 

My Dear Sir: I attended the meeting of the newspaper circulation 
men in the Bellevue-Stratford Hotel here yesterday and heard your 
excellent address. I wanted to see you for the following purpose, 
but I concluded that I would not take your attention while you were 
in the hands of so genial a crowd as the newspaper men, but would 
write you this instead: 

When I wrote you on May 23 I did not have at hand the copy of the 
Postal Laws and Regulations (Form 3500) which you and Mr. Bacon 



28 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

gave me when I called upon you on the 14th of May. I have since 
taken up this pamphlet, and refer particularly to section 429, which 
Mr. Bacon said referred to the matter concerning which I wrote you 
on May 23. Examining this section carefully (sec. 429), I can not 
see that it excludes advertisements from society and fraternal pub- 
lications. Referring to the following section (sec. 430), I see that 
the publications of the state departments of agriculture shall not carry 
advertisements. I can not see that this particular subject is referred 
to in any but these two sections. It is possible, however, that there 
may be decisions that your Mr. Bacon had in mind when he said in 
your and my presence on May 14 that the medical association pub- 
lications had no right to carry advertisements. I respectfully ask 
you and Mr. Bacon to kindly look over together these two sections 
(sees. 429 and 430) and let me know more about this matter — 
that is, if there are any decisions that uphold Mr. Bacon's theory as 
expressed to you and to me on May 14. 

I was in high hopes that this phase of the law would give the inde- 
pendent medical journals an advantage to offset the very great ad- 
vantage which the association medical journals now possess and by 
means of which they are trying to crowd the independents. But upon 
examination of these two sections, I am greatly disappointed. I 
hope that there may be decisions that are more in our favor. 

Assuring you of my admiration of the manner in which you are 
carrying on your " campaign of education," and congratulating you 
you upon its magnificent success, I am, 
Very sincerely, yours, 



September 1, 1908. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, 

Post-Office Department, Washington, D. C. 

My Dear Mr. Lawshe: Your very cordial and courteous letter of 
June 25, with inclosure, was received, for which I thank you. I am 
inclosing herein an editorial clipped from the September issue of the 
Medical. World, which I hope will be of deep interest to you and to 
Mr. Bacon. I am also sending you a marked copy of the Medical 
World containing this editorial, so you will have it both in complete 
form and the inclosed clipping. Now, does it not seem from the atti- 
tude herein shown that it is about time to move in the matter ? Cer- 
tain of these organization journals have shamefully and disgracefully 
abused the independent journals ever since they (the organization 
journals) came into existence. They call us "commercial," "venal," 
"dishonest," and various other "pet" names, with which their vo- 
cabulary seems to be well supplied. Yet a peep into their own edi- 
torial departments shows that they stoop to lower methods of com- 
mercialism than even the worst of the independent journals ever did. 
By their own records they show themselves to be almost wholly 
dependent upon their advertisers for support. I will not say more 
here, but refer you to the inclosed editorial for the facts. 

Is it not plain that it is high time that something should be done 
in the matter % I would welcome a word from you upon the subject. 
Very sincerely, 



SECOND-CLASS MAIL LETTEKS, EXHIBITS, ETC. 29 

THE ETHICS OF ADVERTISING SOLICITING FOR MEDICAL JOURNALS. 

The story that I will here present is a long one, but I will make it as short as«I can. 
All doctors know that there are now two kinds of medical journals. This has been 
true since the rise of the Journal of the American Medical Association, the organ of 
said association, and its brood of state association journals, each one the organ of its 
respective state organization. These journals are collectively called "organization" 
journals. One of their avowed objects is to raise the standard of advertising in medical 
journals, and well they may, as each one has its respective organization behind it for 
support. The other kind of medical journals is the old kind that existed before the 
rise of the organization journals. These are private publishing enterprises which 
must depend upon merit for support; and they are called "independent" journals, 
because they have no organization behind them to depend upon for support. There 
need be no war between these two kinds of medical journals, for there is need for both 
kinds; there is need for the local service of an organization which its journal can give, 
and the profession by its patronage has shown, and is still showing, that there is need 
for independent journals, which can specialize in other ways than local service, and 
can aspire to a national circulation. Of course the Medical World belongs to the latter 
class — the independent journals — though it has never flaunted its "independence" 
in any disagreeable way. 

The American Medical Editors' Association was formed many years ago — before 
organization journals were thought of. So, of course, its membership consisted neces- 
sarily of the editors of independent medical journals — the only kind then in existence. 
When the organization editors began to come into the field, the doors of membership 
into the American Medical Editors' Association were freely opened to them; but most 
of them held aloof, and some of them, notably Dr. P. M. Jones, editor of the California 
State Journal, and Dr. G. A. Simmons, editor of the Journal of the American Medical 
Association, abused the independent journals shamefully without discriminating 
beween the good and the bad, for doing just what they themselves had been doing 
shortly before; that is, carrying questionable advertisements. But a few of the 
organization editors came into the editors' association, among them Dr. J. W. Jervey, 
editor of the Journal of the South Carolina Medical Association. He was heartily 
welcomed, and a genial gentleman we found him to be. This was at the Atlantic City 
meeting, in June, 1907. 

A paper was presented at that meeting which, among other things, criticised Doctor 
Jervey's method of soliciting advertisements. An effort was made to have the writer 
of the paper not to read that portion of the paper, and after it was read I took the floor 
and expressed regret that a new member should be thus criticised, and that portion 
of the paper was edited out of the published transactions, as we wished to promote 
harmony and fraternity. It is well known that most of the . organization editors are 
appointed from the ranks of busy practicians, usually without previous editorial 
experience, the salary usually being only nominal, requiring a continuance of active 
practice, and the tenure of office is uncertain. It is not strange that such a man 
should make a mistake occasionally as an editor, and for the above reasons such 
mistakes should be regarded leniently. 

But it transpires that the thing for which Doctor Jervey was criticised was not a 
mistake on his part. During a correspondence between Doctor Jervey and myself 
last April and May this matter was referred to. Doctor Jervey earnestly defended 
his course and resigned from the association. He published the correspondence in 
the June number of his journal. The correspondence is too voluminous to reproduce 
here, but what is more to the point, we will look at the original offense and to a few 
of the many repetitions of the same, that the profession may judge concerning the 
ethical tone of the same. 

The following is a part of an editorial appearing in the Journal of the South Carolina 
Medical Association for August 21, 1906: 

"It has been suggested once or twice that drug houses, instrument makers, pub- 
lishers, and others seeking the patronage of the medical profession should be excluded 
from space for exhibiting their goods at the meetings of the state association, unless 
these have been, or are about to be, advertised in the Journal * * *. " 

In the October 21, 1906, issue, page 210, appeared the following: 

"do this every time. 

"If drug and chemical houses could be made to realize that the cheapest, best, 
quickest, and surest way of getting before the medical profession of this State is to 
advertise in the Journal they would all be breaking their necks to get space. The 
way to make them realize it, brother members, is to tell their salesmen when they 



30 SECOND-CLASS MAIL — LETTERS, EXHIBITS, ETC. 

enter your offices that they need not ask you to use their preparations if they are not 
willing to use your journal as an advertising medium. 

"Don,'t forget this. Tell it to every salesman coming down the pike; tell it to them 
over and over, until it is so beaten into their heads that they will show the houses they 
represent that they can not do business in South Carolina unless they can advertise 
in the Journal. Don't forget it." 

This was severely (and justly) criticised in the paper, as above explained, but the 
editors' association condoned the offense, believing that the editorial was written 
without mature consideration, and that such a crude and unethical method of drum- 
ming up advertisements for its journal would not be continued. But it has been con- 
tinued, assiduously and persistently. I will submit a few samples in proof, regretting 
the space that they will occupy. The following is the text of a circular which was 
inclosed in the November, 1907, number of the Journal of the South Carolian Medical 
Association : 

" To the owners of this journal, the members of the South Carolina Medical Association: 

"You know that reciprocity encourages business, don't you? Outside of common 
decency, and leaving aside mere etiquette, it's good business to stick to your friends, 
isn't it? Now, who is your friend — the smooth-tongued spiel artist who swears undying 
love and admiration for you as long as he is in your hearing and laughs behind your 
back at your easy gullibility and willingness to do business with him at an expense to 
himself of nothing more than a few lungfuls of hot air? Or is your friend the fellow 
who thinks enough of you to support your efforts for betterment and puts up his fair 
share of cash for the promotion of straightforward business intercourse with you and 
for the stimulation of legitimate professional business and its accompanying trade? 

"The last, you say? Certainly. There are no hopeless idiots among the owners of 
this journal. 

"All right; so far, so good. But what are you doing for your friends who are helping 
you in your work? And what will you do for the pretenders who are 'working' you 
for their own help? 

"Read the following colloquy, which actually occurred very recently in our hearing: 

"Affable salesman [entering doctor's office]. 'Doctor, I am representing the Blank 
& Blank laboratories, of Analaska, and I have here a very elegant preparation, of 
which 1 am going to leave you samples, of the best, positively the very best, most 
scientific mixture of laxative salts ever offered to your discriminating profession. This 
is' 

"Doctor [interrupting]. 'Does your firm advertise in the journal of our state 
medical association?' 

"Salesman [with feigned pained surprise]. 'Er — no. Why do you ask?' 

"Doctor [cheerfully]. 'Oh, because there's really no reason why doctors should sup- 
port a firm that is not willing and ready to support us in our efforts to better existing 
conditions.' 

"Salesman [affecting indignation]. ' Do you mean to tell me, sir, that simply because 
a firm does not advertise in your journal you refuse to consider or test its products, 
no matter how superior they may be — no matter how many lives they may save? ' 

"Doctor [sweetly]. 'My dear man, how many firms in this country put out the best 
product on the market and how many of them come in here to tell me all about it? 
Do you suppose for a minute that I, or any other doctor, have time to try them all on 
their merits? Do you, now, eh? ' 

"Salesman [unwillingly]. 'Well, no: I don't suppose you have.' 

"Doctor. 'Very good. Then, isn't it reasonable and proper that what testing and 
patronage we have to place should favor first the firms that maintain close business 
relations with us — our business friends? ' 

"Salesman. 'Yes; I guess that's true. I am going to take this matter up with the 
house. What's the journal's business address?' 

"Now, the point is, that the journal needs the support of good ethical advertisers, 
and if every doctor who is part owner of the journal will pursue the above line of 
thought, speech, and action, the effect would be magical. As long as these houses 
think they can work us without advertising they will hold back. It is up to us, every 
one of us, to treat them as if they were from Missouri and show them. By doing this 
we are at the same time giving loyal support to those houses that are represented in 
our pages, which is only decent and proper. They are the ones to whom we should 
always give preference, and we again urge all of our joint owners to follow up this 
principle and always to insist distinctly when buying supplies that you wish and will 
have our advertisers' products — there are none better. 

"We have a most wonderful and estimable concord of thought in the profession of 
our State. What remains to be acquired is unity of action. Are there brains and 
energy enough in our membership to accomplish it? We think so. 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 31 

"'This is practical, hard-sense talk, and we aj peal to every individual member for 
active, intelligent cooperation. Faithfully, Yov.r Journal." 

On page 283 of the same issue appears the following: 

"This journal needs money, and the way to get it is to increase the advertising 
patronage. We are doing this slowly as advertisers wake up to our extraordinary 
advantages, but it must be done faster, and this can only be accomplished through 
the help of all our association members. Give our advertisers preference every time 
in your purchases, even if the bill is not over a quarter; and flatly refuse to trade with 
those houses that do not patronize your own publication. Every one of you should be 
ashamed to give the smooth-tongued salesman the opportunity (and he chuckles over 
it) to say, 'Doctors are easy; we can work them all the time.' 

"Financially speaking: "Help me, Cashsius, or I sink.' " 

On page 339 of December, 1907, number occurs the following: 

"Stop, look, and listen, Mr. Member of the South Carolina Medical Association. 

"The association has proved its value, has it not? What have you done to help 
along the good work? What are you doing now to push it along? How many traveling 
salesmen iiave gone crestfallen out of your office this month because you put it up to 
them that their houses do not advertise in your journal? Here is the way one of the 
most prominent surgeons in this State put it in the past thirty days: 

" ' He came into the office with a "grip " in his hand and a smile on his physiognomy. 
I collared him. 'Look here, Jones, I don't see your ad in our journal — get it in, or 
you get out.' Tickle me and I'll tickle you, and not unless. Jones promised to 
write the "house" to-night. Hit it again, Mr. Editor.' 

" Now, you are not all blind and deaf and dumb. Take the cue. You all have to 
pay taxes and licenses to do business. Why should a stranger be allowed to come in 
and 'work 'you for a big profit without paying the tax? Get busy; and while busy, 
support faithfully the advertisers who are already doing business with us." 

March, 1908, number, page 124: 

" " What are you doing to further the interests of your profession? What are you doing 
to help your journal? Are you doing business with our advertisers? Are you refusing 
to trade with those houses which refuse to do business with you through your journal? 
Are you letting bland and oily tongued traveling salesmen laugh at you behind your 
back because you let him talk you into doing business with his house, though his 
house declines to pay the just license tax of an advertisement in your journal? You 
are not hurting a house by forcing it to advertise in the Journal. You are helping it to 
get more business. This is easily proved by our present advertisers. Ask them. 
Support your journal and its advertisers, and don't fail to tell every traveling salesman 
who comes into your office that the way to commence to do business with the doctors of 
South Carolina is to make an advertising contract with vour journal." 

Issue for May, 1908, page 221: 

"* * * We are in receipt of the following communication from a high official of 
the South Carolina Medical Association: 

' ' " Please send to a copy of the May issue of the Journal . He represents , 

and I have urged him to advertise with us. 'No advertise, no prescribe.' See? He 
will take it up with his house.' " 

On the following page is this surprising statement: 

"* * * No regular fund is turned over to the Journal from the treasury, but its 
expenses are paid from its advertising income, and when this runs short, the actual def- 
cit, whatever it is, is paid out of the treasury by special order of the council * * *." 

Did you ever before see such rank and unadulterated commercialism. in a scientific 
publication? Yet Doctor Jervey calls the independent journals "commercial" 
journals. Some of the independent journals have been pretty rank, but I have never 
seen anything in the worst of them that approached the above in crude commercialism. 
Here is a plain application of the boycott: "No advertise, no prescribe." Let the 
profession look and see to what straits the South Carolina Medical Association is 
driven. It would better have no journal at all than one supported by the boycott. 
Any way, -as they claim to be so noncommercial (at the same time stooping to the 
very depths of commercialism) why don't they pay the expenses of their journal 
regardless of advertising? Is it possible that the members of the South Carolina 
Medical Association stand for such rank commercialism and bad business ethics as 
the above? Let th^ members of other state medical associations behold with aston- 
ishment. 

After the executive committee of the American Medical Editors' Association had 
inspected the correspondence referred to above (but too voluminous to reproduce 
here), and some sample editorials that I submitted with the correspondence, Doctor 
Jervey's resignation was accepted without hesitation. The organization editors 
(except a few who remain true to the regular association) have gone off and formed 



32 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

an association of their own. Will they adopt the standard of commercial ethics set 
forth by the Journal of the South Carolina Medical Association? Will doctors who 
are still outside of medical associations be attracted by such ethics? 

An inspection of the advertising pages of the Journal of the South Carolina Medical 
Association shows that if the doctors of that State confine their prescribing to the 
remedies therein advertised they have a very few remedies to choose from, and almost 
all of these few have not been indorsed by the council on pharmacy and chemistry 
of the American Medical Association. 

From time immemorial publications of all kinds have said "When corresponding 
with advertisers kindly mention this journal." But it has remained for the Journal 
of the South Carolina Medical Association to put forth the brutal, unethical slogan, 
"No advertise, no prescribe." How do pharmaceutical houses of this country like 
a bump like this? Will they be forced into any publication by such tactics? Can 
not Dr. P.M. Jones, of California, pour out an anathema upon such journalistic ethics? 

In the July issue of the k South Carolina Journal the editor intimates that there is 
not an independent medical journal but that would cease publication if it were not 
for the advertisernents. He can revise his statement by excepting one, at least— 
The Medical World. Our income from subscriptions is considerably greater than 
from advertising; and we could and would continue publication profitably if all 
advertisements were withdrawn. We know that, for we keep an accurate account of 
everything. In the first place, a withdrawal of our advertisements would decrease 
our expenses almost one-half; and it wouldn't decrease our income one-half. The 
cost of publishing a journal of over 30,000 copies is very great; and advertisers are 
not willing to pay what the space is really worth. The membership of the South 
Carolina Medical Association is about 800; and the cost of printing a journal of so small 
an edition is a trifle compared to the former, and the advertising rates are much higher 
in proportion; this, perhaps, is the reason that advertising patronage is so important 
to the smaller journals, but the advertisers fail to realize that they pay a much higher 
"freight" than in the journals of large circulation. However, a journal without 
advertisements would be an anomaly; a journal with well-selected advertisements 
is a better journal than it would be without them — more attractive to its readers. 
But advertisers would do well to shun journals that depend on advertisements for 
their entire support. 

One of the youngest and one of the very best organization journals is the Journal of 
the Indiana State Medical Association, edited by Dr. A. E. Bulson, of Fort Wayne, 
Ind., a high-class man, excellent physician, and able editor. But we see here, also, 
that hunger for advertising which is supposed to afflict only weak and low-class pub- 
lications. I clip the following from page 247 of the June issue of the Indiana Journal: 

"Read the advertising pages of the Journal and then make it a point to patronize ' 
the advertisers whenever you can consistently do so. An occasional letter to the 
advertisers, saying that you are patronizing them and that you appreciate the fact 
that they are advertising in the Journal, will go a long way toward making them feel 
that their money spent with us is bringing returns. This means something to you 
in the way of securing a larger and better journal." 

There is nothing bulldozing or boycottish about this, but high-class independent 
journals do not permit anything of this kind in their editorial pages. On page 249 of 
the same issue of the Indiana Journal occurs the following — still right in the midst of 
the editorials: ' 

" * * * Of course, a large part of the expense of publication is met by the income 
from advertising, and without this income the Journal would be a small and com- 
paratively insignificant periodical. Members of the association should bear this in 
mind when we plead for the support of the advertising pages, for it means much for 
the success of the Journal * * *." 

It seems that the organization journals are counting much more on revenue from 
advertisements than independent journals in good standing usually do. My theory 
has always been that a publication should be made for its readers primarily, and con- 
ducted in their interest; and that advertising should be only incidental to this. The 
Medical World is conducted in accordance with that theory, and the large support 
from subscribers proves the success of the same. 

Another indication of advertising hunger among the organization journals is the 
following, clipped from page 157 of the May issue of the California State Journal of 
Medicine: 

"* * * We have secured an advertising agent in New York and another in 
Chicago, both of whom are acting for some fifteen state association journals, and in due 
course we may expect to receive some new business from these sources; in fact, about 
two pages of advertising have been thus secured." * 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 33 

In the old days when medical societies published annual transactions the mem- 
bers paid for them; can't they pay for their organization journals, and not try to shift 
the entire load to the good-natured advertiser? At any rate, as they claim to lead in 
high-class medical periodical literature (they ought to, with the strength and influence . 
of the associations behind them), should they not quit this undignified crying, in their 
editorial columns, for advertising patronage? I have never seen so much bold, 
unmasked commercialism in medical editorials as I have seen during the last year or 
two in the organization medical press (the above being only a few samples); yet the 
editors of some of these papers, notably of the South Carolina, California, and Kentucky 
journals, refer to the independent journals in insulting terms. It is time for the 
"worm to turn" and show the venality and hypocrisy of the most blatant of these. It 
is a long story. The above is only a few scraps taken here and there. 

However, I take great pleasure in saying that most of the organization journals are 
ably conducted and high class, and they occupy a very useful field when they attend 
strictly to their own business and show us how well they can attend to it. As to 
advestisements, the Indiana Journal, the same issue as quoted from above (June), 
page 249, says: 

* * * Please remember also that out of about 20 state association journals 
there are only 3 that have clean advertising pages * * *." 

These three I suppose are the Indiana Journal, the Pennsylvania Journal, and the 
Illinois Journal. These three line up to the official standard of advertising only 
remedies that have been reported upon favorably by the council of pharmacy and 
chemistry of the American Medical Association. Official journals ought to line up 
to the official standard, and not make so much fuss about it; but the above statement 
of one of their own number is certainly not a flattering one. I have before me a lot of 
"official" journals carrying all kinds of advertisements. I could fill many pages 
with the details, but this editorial is far too long now, so I will desist, with the exhorta- 
tion that members of medical societies demand that their official journals be more 
consistent and less commercial. 

DEPENDENT ABSOLUTELY ON ADVERTISING INCOME. 

In connection with the above, the following will be of interest: When the Journal 
of the Indiana State Medical Association came into existence some months ago (last 
January was the exact date, I think), Dr. A. E. Bulson, of Fort Wayne. Ind., became 
its "editor and manager." At the same time Doctor Bulson's own journal, the Fort 
Wayne Medical Journal-Magazine, an "independent" journal, was dropped — that is, 
is was discontinued — dropped out of existence. 

On the night of June 1 last, while the American Medical Editors' Association was 
holding its regular annual banquest, the organization editors were not there, but 
were having a little side show of their own. What if a few of the most ultra organiza- 
tion men of your county society should ignore the regular organization and start a 
separate society of their own, and hold meetings at the same time as the regular organ- 
ization? Would you consider them good organization men? 

This meeting of organization editors (and state secretaries) is reported in the Journal 
of the American Medical Association for July 11, pages 145-146. I clip from page 146 
the following sentence from Doctor Bulson's speech as there reported: 

"He said that he had edited for a number of years a journal which was dependent 
absolutely on its advertising income, but that he had always endeavored to keep the 
reading pages free from advertising." 

This throws a powerful light upon "things as they were," but as they should not 
have been. Just think. A medical journal published for years, "dependent abso- 
lutely on its advertising income." Stop and think about such a condition. It was 
certainly high time that such a journal should be discontinued, and if any more are 
in existence they should be discontinued at once. What must advertisers think of 
such a revelation? The new postal regulation should have come years ago. The 
above condition was never true of the Medical World, and I am sorry to know 
that it was ever true of any medical journal, particularly one published by so 
good a man as Doctor Bulson, for he never prostituted his reading pages to commer- 
cial uses, but I can't understand why he had no subscription income, and why 
he continued a publication with no subscription income, for the test as to whether a 
journal is needed or not should be determined by paid subscriptions; this should be 
first, and the advertising should be incidental to this. The profession should decide, 
by its patronage, whether or not a publication is needed. If, according to this test, 
it is not needed, it should not be bolstered up by advertising, and advertisers should 
not be willing to patronize a journal that will not give a detailed statement of its 
number of actual subscribers. The Medical World has been giving such a detailed 
statement to its advertisers nearly every month for years. 

25488— exhibits— 10 3 



34 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

1 

Proper and honorable commercialism is all right in its place; but its place is not in 
the editorial department of a medical journal, particularly of medical journals that 
are the official and supposedly dignified organs of great and honorable medical asso- 
ciations. So I again exhort the members of the South Carolina State Medical Asso- 
ciation to protest against coarse and brutal commercialism, partaking of the features 
of the boycott, appearing in their official organ, and I exhort the members of certain 
other state associations to demand that their official organs shall be kept up to the 
high and noncommercial standard of the best of these organs, which is high — say up 
to the Pennsylvania standard or the Illinois standard. And members of state socie- 
ties should insist that their official organ shall not have to depend wholly nor chiefly 
upon advertising for its running expenses. This is worse than for a so-called "inde- 
pendent" journal to be "dependent absolutely on its advertising income." Doctors 
are able to pay for their journals, whether they be official organs of their societies or 
independent publications; and publications of either kind that are not thus paid for 
deserve to be suppressed, and advertisers could do it by withdrawing the "prop," and 
the Post-Office Department could do it by applying the new regulations. I hope they 
will both "get busy," for the profession will lose nothing by losing what its patronage 
does not call into existence nor justify, and advertisers would gain by not having to 
prop up publications not sustained by the patronage of the profession. 

DEFINITE FIGURES. 

By the definite figures officially given below it will be seen that the Journal of the 
Indiana State Medical Association depends chiefly upon its advertising income for 
its existence. The Indiana State Medical Association met June 18 and 19, 1908, at 
French Lick, Ind. At this meeting the councilors made a report to the house of 
delegates; this report is published in the July issue of the Journal, from which I 
clip the following (p. 292): 

* * * The cost of publishing the Journal in its present form and size for one 
year will be approximately $5,000, not counting any salary for the editors. Of this 
amount about $1,800 is received from the association in subscriptions and the balance 
must be secured from advertising. Remuneration for the editors' services is to be 
paid from any surplus at the close of the year." 

Here we have definite figures showing to what extent that particular official journal 
is dependent upon advertising patronage for its existence. How about other official 
journals? If they show dependence to a similar extent upon advertising for their 
existence, shall we not call them the "dependent" journals? Would it not be much 
better that the members of the medical associations pay at least the actual cost of 
their official journals? 

Later: In the August number of the California State Journal of Medicine, page 
256, the South Carolina Journal matter is fully indorsed, and the members of the 
California Medical Association are urged to do the same thing "and stick to it." 
Thus the South Carolina Journal does not stand alone in the above-illustrated methods 
and ethics of obtaining advertisements. Others not so mild mannered as the writer 
of these lines would apply very ugly words to these methods and ethics. I will leave 
this for others to do if they wish. 

The California Journal editorial above referred to is too scurrilous and insulting to 
quote. It seems to me that the members of medical associations would demand that 
their journals be conducted at least in a gentlemanly manner. 



[Editorial in Texas Medical Journal, March number, 1910.] 
MEDICAL ASSOCIATION JOUKNALS AND THE POSTAL LAWS. 

THIRTEEN HUNDRED TONS OF FREE MEDICAL JOURNALS SENT ANNUALLY THROUGH 
THE MAILS AT SECOND-CLASS RATES, IN VIOLATION OF THE LAW — AN IMPORTANT 
FACTOR IN THAT $17,000,000 DEFICIT. 

It is not generally known that the Journal of the American Med- 
ical Association and most of the state medical association journals, 
including Texas, are, and for many years have been, violating the 
postal laws in two essential particulars; but such is a fact. In an 
official letter from the Acting Third Assistant Postmaster-General, 
addressed to a party in South Carolina in reply to inquiries, a copy 



SECOND-CLASS MAIL LETTEKS, EXHIBITS, ETC. 35 

of which letter is before me, he holds that members of an association 
who receive the association's journal in consideration of the payment 
of membership fees or annual dues are not bona fide subscribers, as 
prescribed by the department as a condition precedent to the privi- 
lege of second-class mailing rates, and that such journals shall not 
carry advertisements other than those that relate strictly to the 
affairs of the association and the purposes of such organization. 

The second-class mailing privilege (1 cent per pound) having been 
obtained by the representation that these medical publications have 
a large bona fide subscription list, this savors of misrepresentation 
and (unintentional) fraud, and it may constitute grounds for action 
at law, and certainly warrant for the withdrawal of the privilege of 
second-class mail. A subscriber is one who orders and pays for a 
journal, at his discretion, and not a member who has it sent to him 
in consideration of the payment of dues. 

This is a very serious matter, and I call the attention of our trus- 
tees to it. The Journal of the American Medical Association has 
caught on — or been caught up with — and is hedging, as I pointed 
out in last issue, by separating the subscription to the journal from 
the membership fee, the latter being now announced as $1 a year, 
and the subscription to the journal — discretionary — at $4. This 
must be done by our own association at the Dallas meeting in May, 
and I shall introduce a resolution to that effect. 

The American Medical Association journal has also been brought to 
see that all these years it has been carrying advertisements not allowed 
by the postal laws — automobile advertisements and such like — and has 
doubtless caused to be introduced in Congress a bill to legalize the 
carrying of such advertisements. At any rate, Mr. Dodds has intro- 
duced such a bill (House bill 17543, by Dodds, January 10, 1910), 
and the Journal of the American Medical Association doubtless 
inspired it. The cap that fits the "octopus" fits also its tentacles — 
the state association journals. 

The Acting Third Assistant Postmaster-General, after quoting in 
full the postal laws bearing upon the subject and giving the opinion 
of the Attorney-General of the United States in support of his position 
and construction, comments as follows: 

Tn all cases it must appear that it is left to the option of the membev whether he will 
subscribe or not. The subscription must not be forced or made obligatory upon him. 

This law unquestionably contemplates that there shall be as a prerequisite to such 
entry a public demand for the publication on its merits evidenced by a list of sub- 
scribers who desire it and pay for it. 

Many fraternal orders and other similar organizations provide by resolution or by- 
law that a certain portion of each member's dues, or per capita tax, etc., shall be set 
aside for the payment of his subscription to some paper which is published by the 
society or adopted as its official organ. 

At first sight it might appear that a list of such members should be recognized as a 
"legitimate list of subscribers," but upon a careful consideration of this method of 
securing a subscription list it is found to be a meeting of the requirements of the act in 
form rather than in substance, as it is usually the fact that the price of membership, or 
the amount of dues payable, is the same, whether the members desire the publication 
or not; that is to say, it is not left to the option of a member to receive the publication 
or not, as he sees fit, and to have his dues increased or decreased accordingly. 

In the last analysis, therefore, the publication is virtually thrown in free as a con- 
comitant of membership, the expense of publishing and circulating the paper merely 
being paid out of dues accruing from membership in the society. The effect of all this 
is that the members, being the society, publish a paper and furnish it to themselves free. 
The society is therefore in reality both the publisher and subscriber. Viewed in this 



36 SECOND-CLASS MAIL LETTEKS, EXHIBITS, ETC. 

light, not only does the paper not have a "legitimate list of subscribers," but is literally 
circulated free, and therefore comes clearly within the prohibition of the statute. 

The department has uniformly held that publications containing advertisements 
in the interests of other persons or concerns than the society or trades union or insti- 
tution of learning which, the paper represents are not entitled to the privileges of 
that act. 

Considering, therefore, that Congress undoubtedly intended to extend the second- 
class mailing privileges to certain jj^iblications under the conditions above set forth, 
it is clear that if these publications are to enjoy the second-class mailing privileges 
under an act other than the one specially designed for them, the requirements of the 
alternative act should be fully met. They certainly can not enjoy the privileges of 
both acts without the restrictions of either. In this connection two observations 
may be made: 

1. It is a fact disclosed by answers to many inquiries that but few of the organiza- 
tions whose publications are entered under the act of March 3, 1879, and having the 
"list of subscribers" based on a by-law or resolution providing for setting aside a 
portion of the members' dues, are actually abiding by the resolution, but, on the 
contrary, the moneys paid on account of alleged subscriptions enter into the general 
funds of the organization and the cost of printing and circulating the publication is 
merely paid therefrom. 

2. It is manifestly an injustice to publishers competing in the same or a similar field 
and having papers which would be patronized by the members of an organization to 
to be compelled to secure and maintain a list of subscribers based on the drawing 
power of the paper as such, whereas the competing organization papers' list of sub- 
scribers is composed of members who were drafted in under a by-law of the organiza- 
tion and receive the paper as one of the benefits of membership, and not on account 
of voluntary subscription. Publishers of other papers have entered complaint 
asserting that people will not pay for that which they can receive free. Consequently, 
those receiving a paper through the medium of membership in a society are not dis- 
posed to pay for some other paper in the same field. 

******* 

President Taft calls the attention of Congress to the statement 
of the Postmaster-General that the second-class mail falls short 
$17,500,000 of paying expenses. The Third Assistant Postmaster- 
General recommends very drastic measures to be applied to the small 
medical and other journals, such as limiting sample copies to 10 
per cent of issue, and refusing mail to copies sent to all subscribers 
who do not renew and prepay their subscriptions within four months 
after expiration of same. And yet he permits tons upon tons of 
medical journals to be sent at second-class rates, in violation of the 
law as interpreted by himself backed by the opinion of the Attorney- 
General of the United States. For twenty-five years and more the 
Journal of the American Medical Association has been sending copies 
to its members in consideration of payment of their dues, and carrying 
advertisements outlawed by said opinion. In 23 States the Medical 
Association issues a monthly journal which is sent free to its mem- 
bers in violation of the law as pointed out above. The Journal of 
the American Medical Association sends 50,000 copies each week, 
averaging, say, half a pound. That is, 52 weeks in a year, equals 
2,600,000 copies, or 650 tons of mail that should pay postage. 
It is safe to estimate the output of the 23 state journals at about the 
same. This would make 1,300 tons a year. The Dodds bill, if 
passed, would legalize and make permanent this burden on the mail 
as to the advertisements. The Third Assistant Postmaster-General 
has, in effect, put up the bars against the pigs, and left ten panels 
of fence down for the hogs and cattle. To give the state and national 
journals such advantage over the journals having a paid subscription 
list is a discrimination ruinous to the smaller publications, for as 
the Postmaster-General says, "a man will not pay for that which he 
gets free." It is tantamount to a combination in restraint of trade, 



SECOND-CLASS MAIL. LETTERS, EXHIBITS, ETC. 37 

inasmuch as it creates a monopoly for the favored journals, and de- 
stroys competition and destroys the independent journals. The 
Texas Medical Journal, now in the twenty-fifth year of sustained 
patronage and usefulness, protests against such an unjust discrimina- 
tion. 



Exhibit G. 

EXTRACT FROM ANNUAL REPORT OF THE POST-OFFICE DEPARTMENT 
FOR THE YEAR ENDED JUNE 30, 1909 (PP. 315-316), ENTITLED 
" SUBSCRIPTIONS BY FRATERNAL ORDERS, SOCIETIES," ETC. 

The department has found it somewhat difficult to correctly con- 
strue and uniformly apply the act of March 3, 1879, where the sub- 
scriptions of members of fraternal orders, societies, etc., to the news- 
paper or periodical published by or adopted as the organ of their 
respective bodies are paid in connection with their dues thereto, 
such organizations either not being so constituted as to be entitled to 
the benefits of the act of July 16, 1894, or, if entitled to the privileges 
of that act, preferring the benefits of the organic act of March 3, 1879. 

Publications entitled to the second-class mail privilege under the act 
of March 3, 1879, are limited to " newspapers and other periodical 
publications originated and published for the dissemination of infor- 
mation of a public character, or devoted to literature, the sciences, 
arts, or some special industry, and having a legitimate list of sub- 
scribers," and those are prohibited which are " designed primarily 
for advertising purposes, or for free circulation, or for circulation at 
nominal rates." i 

A careful inquiry into the purpose of this statute shows that Con- 
gress, in the interest of the public, intended to give second-class 
postage rates to those publications only for which there is a popular 
demand, evidenced by a bona fide list of subscribers. From the broad 
range of printed matter covered by these five subjects, favored with 
but nominal postage charges, it was designed to leave each indi- 
vidual to his own option as to the periodical for which he should 
subscribe, or not to subscribe for any if he should so elect. It is 
simply the ordinary operation of the economic law of supply and 
demand. 

The members of these organizations have a full and unquestioned 
right to subscribe for whatever periodical they may choose, and this 
department neither has nor assumes any right to interfere there- 
with, but may incidentally make inquiry as to the character of such 
subscriptions in its effort to determine whether a publication has a 
lawful subscription list or is designed primarily for advertising pur- 
poses or for free circulation. 

The constitution or by-laws of such orders and societies may pro- 
vide for the publication or adoption of a newspaper or periodical as 
their organ, but they can not force the same upon their members 
as a condition of membership where there is no desire for the pub- 
lication. 

To meet these conditions, as well as to do justice to that class of 
publishers who must compete with fraternal and society organs, the 
department now declines to consider as a part of a legitimate sub- 



38 SECOND-CLASS MAIL — LETTERS, EXHIBITS, ETC. 

scription list such subscriptions as are made in connection with 
the payment of dues, unless it is made plain to the member that he 
is given the opportunity to say whether he desires such publication, 
and in the event of his not desiring it sufficiently to pay therefor, 
his dues will be diminished by the amount of the subscription price 
of the publication. 

In pursuing this policy no drastic or harsh measures are em- 
ployed. The steady effort of the department is to administer the 
Taw with firmness, but in justice and with leniency in deserving 
cases. Where such a publication has already been admitted and 
has been cited for apparent lapses, it is given a reasonable oppor- 
tunity to take the proper corrective steps and bring about right 
conditions under the law, and there is never a revocation of an 
authorization until this opportunity has been, disregarded and the 
required correction has gone by default. If a new publication seeks 
admission but appears not to conform to the requirements of the 
statute, and the publisher shows a disposition to meet such demands, 
all reasonable instruction and indulgence are extended, to the end 
that loss of time and money and embarrassment may be spared 
the publisher. The policy of the department is not to keep out 
publications, but uniformly to insist that they seek and obtain 
admission through the channels prescribed by law and not according 
to organization schemes which are in conflict with the purpose of 
Congress in conferring the benefits of the second-class mail privilege. 

Exhibit H. 

letter addressed to the hon. a. f. lever, m. c, containing a 
discussion of the policy of the post-office department re- 
garding fraternal and other publications issued by soci- 
eties entered, or for w^hich entry is sought, under the 
act of march 3, 1879. 

November 19, 1909. 
Hon. A. F. Lever, 

Lexington, S. C. 
Dear Sir : Receipt is acknowledged of your communication of the 
12th instant, relative to the pending application for admission of 
the South Carolina Pythian to the second class of mail matter at 
Columbia, S. C. In view of your statement, it is deemed proper to 
explain the attitude of the department with reference to subscription 
lists made up of members of fraternal and other societies who receive 
the publication on account of their membership and the payment 
of dues. 

There are three laws under which a publication is entitled to trans- 
mission as second-class matter, namely, the acts of March 3, 1879, 
July 16, 1894, and of June 6, 1900. This statement has to deal only 
with the first two of these, and the administrative practices of the 
department thereunder. 

The provisions of the act of March 3, 1879, in respect of second- 
class matter are as follows : 

Sec. 10. Mailable matter of the second class shall embrace all newspapers and 
other periodical publications which are issued at stated intervals, and as frequently 
as four times a year and are within the conditions named in sections twelve and 
fourteen . 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 39 

Sec. 12. Matter of the second class may be examined at the office of mailing, and 
if found to contain matter which is subject to a higher rate of postage, such matter 
shall be charged with postage at the rate to which the inclosed matter is subject: 
Provided, That nothing herein contained shall be so construed as to prohibit the inser- 
tion in periodicals of advertisements attached permanently to the same. 

Sec. 14. The conditions upon which a publication shall be admitted to the second 
class are as follows: 

First. It must regularly be issued at stated intervals, as frequently as four times 
a year, and bear a date of issue, and be numbered consecutively. 

Second. It must be issued from a known office of publication. 

Third. It must be formed of printed paper sheets, without board, cloth, leather, 
or other substantial binding, such as distinguish printed books for preservation from 
periodical publications. 

Fourth. It must be originated and published for the dissemination of information 
of a public character, or devoted to literature, the sciences, arts, or some special 
industry, and having a legitimate list of subscribers: Provided, hoaever, That nothing 
herein contained shall be so construed as to admit to the second-class rate regular 
publications designed primarily for advertising purposes, or for free circulation, 
or for circulation at nominal rates. 

The act of July 16, 1894, reads as follows: 

All periodical publications issued from a known place of publication at stated inter- 
vals and as frequently as four times a year, by or under the auspices of a benevolent or 
fraternal society* or order organized under the lodge system and having a bona fide 
membership of not less than one thousand, persons, or by a regularly incorporated 
institution of learning, or by or under the auspices of a trades union, and all publica- 
tions of strictly professional, literary, historical, or scientific societies, including the 
bulletins issued by state boards of health, shall be admitted to the mails as second- 
class matter and the postage thereon shall be the same as on other second-class matter 
and no more: Provided further, That such matter shall be originated and published to 
further the objects and purposes of such society, order, trades union, or institution of 
learning, and shall be formed of printed paper sheets without board, cloth, leather, or 
other substantial binding, such as distinguish printed books for preservation from 
periodical publications. 

From the foregoing it will be seen that the entry of publications as 
second-class mail matter under the act of March 3, 1879, is limited to 
" newspapers and other periodical publications originated and pub- 
lished for the dissemination of information of a public character, or 
devoted to literature, the sciences, arts, or some special industry, and 
having a legitimate list of subscribers/' and prohibits the admission 
of those "designed primarily for advertising purposes, or for free cir- 
culation, or for circulation at nominal rates." 

This law unquestionably contemplates that there shall be, as a pre- 
requisite to such entry, a public demand for the publication on its 
merits, evidenced by a list of subscribers who desire it and pay for it. 

Many fraternal orders and other similar organizations provide by 
resolution or by-law that a certain portion of each member's dues, or 
per capita tax, etc., shall be set aside for the payment of his subscrip- 
tion to some paper which is published by the society or adopted as 
its official organ. 

At first sight it might appear that a list of such members should 
be recognized as a "legitimate list of subscribers," but upon a careful 
consideration of this method of securing a subscription list, it is 
found to be a meeting of the requirements of the act in form rather 
than in substance, as it is usually the fact that the price of member- 
ship, or the amount of dues payable is the same, whether the mem- 
bers desire the publication or not; that is to say, it is not left to the 
option of a member to receive the publication or not, as he sees (it. 
and to have his dues increased or decreased accordingly. 

In the last analysis, therefore, the publication is virtually thrown 
in free as a concomitant of membership, the expense of publishing 



40 SECOND-CLASS MAIL LETTERS,, EXHIBITS, ETC. 

and circulating the paper merely being paid out of dues accruing 
from membership in the society. The effect of all this is that the 
members, being the society, publish a paper and furnish it to them- 
selves free. The society is therefore in reality both the publisher and 
subscriber. Viewed in this light not only does the paper not have a 
"legitimate list of subscribers/' but is literally circulated free, and 
therefore comes clearly within the prohibition of the statute. 

The records of the department show that the view that a publica- 
tion issued under the conditions above set forth did not meet the 
requirements of the act of March 3, 1879, prevailed prior to 1894, when, 
in order to give relief to the many meritorious fraternal and educa- 
tional publications, the second-class mailing privilege was condition- 
ally extended by the act of July 16, 1894, to the following classes of 
publications : 

(1) Those issued by or under the auspices of a benevolent or fra- 
ternal society, organized under the lodge system, and having a thou- 
sand members. . 

(2) By a regularly incorporated institution of learning. 

(3) By or under the auspices of a trades union. 

(4) By strictly professional, literary, historical, or scientific 
societies. 

(5) Bulletins issued by state boards of health. 

This law does not require a "legitimate list of subscribers," and 
does not prohibit the admission of the second class of mail matter 
of a publication circulated free or for advertising purposes. But the 
privilege was restricted to publications "originated and published 
to further the objects and purposes of such society, order, trades 
union, or institution of learning.' ' 

Under this provision the Assistant Attorney-General for the Post- 
Office Department rendered the following opinion: 

I have before me your letters dated November 30, 1900, and December 7, 1900, 
with which you submitted a number of specimen periodicals, and ask "to have a 
settlement of the following questions," viz: 

First, the right of a publisher, under the "educational " act, to insert any advertising 
not pertaining strictly and immediately to the propagation of learning in its technical 
sense, as inculcating a knowledge of those branches of education which cultivate and 
enlarge the mind, as distinct from the sale of school furniture or any other article. 
#***■*** 

Under this law, to entitle a paper to be sent through the mails at second-class rates, 
among other things, the matter contained therein "shall be originated and published 
to further the objects and purposes of such society, order, trades union, or institution 
of learning." In reply, therefore, to your inquiry designated "First," I have to 
state that, in my opinion, a paper containing advertisements in the interest of other 
persons or concerns than the society, order, trades union, or institution of learning 
which such paper represents is not entitled to the privileges of the law quoted. My 
opinion is strengthened by the fact that the act of Congress (Mar. 3, 1879, 1 Supp. 
R. S., 246) which authorizes you to accept at second-class rates certain periodical 
publications having a "legitimate list of subscribers" expressly states: "That nothing 
herein contained shall be so construed as to prohibit the insertion in periodicals of 
advertisements attached permanently to the same." 

This proviso applies only to the act in which it was incorporated, and as§ Congress 
has not seen fit to insert a similar provision in the act of July 16, 1894, we can not 
place it there. 

******* 

Accordingly, the department has uniformly held that publications 
containing advertisements in the interests of other persons or con- 
cerns than the society or trades union or institution of learning which 
the paper represents are not entitled to the privileges of that act. 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 41 

Considering, therefore, that Congress undoubtedly intended to 
extend the second-class mailing privileges to certain publications un- 
der the conditions above set forth, it is clear that if these publications 
are to enjoy the second-class mailing privileges under an act other 
than the one specially designed for them the requirements of the 
alternative act should be fully met. They certainly can not enjoy 
the privileges of both acts without the restrictions of either. In this 
connection two observations may be made: 

1. It is a fact disclosed by answers to many inquiries that but 
few of the organizations whose publications are entered under the act 
of March 3, 1879, and having the "list of subscribers" based on a 
by-law or resolution providing for setting aside a portion of the 
members' dues, are actually abiding by the resolution, but, on the con- 
trary, the moneys paid on account of alleged subscriptions enter into 
the general funds of the organization, and the cost of printing and 
circulating the publication is merely paid therefrom. 

2. It is manifestly an injustice to publishers competing in the 
same or similar field and having papers which would be patronized 
by the members of an organization to be compelled to secure and 
maintain a list of subscribers based on the drawing power of the 
paper as such, whereas the competing organization paper's list of 
subscribers is composed of members who were drafted in under a 
by-law of the organization and receive the paper as one of the bene- 
fits of membership and not on account of voluntary subscription. 
Publishers of other papers have entered complaints asserting that 
people will not pay for that which they can receive free. Conse- 
quently, those receiving a paper through the medium of member- 
ship in a society are not disposed to pay for some other paper in the 
same field. 

The following methods of circulating publications to members of 
societies, while they appear to meet the requirements of the law in 
form, are not regardecl as meeting the law in fact: 

(1) Where so-called subscriptions of members are paid by deduct- 
ing the subscription price from the membership fees or dues under a 
provision of the constitution or by-laws of the organization to the 
effect that such part of each member's dues or fees is set aside to pay 
his subscription. 

(2) Where the subscription takes the form of a definite statement 
over the member's signature when transmitting his fees or dues, 
that a stated portion shall be used for the purpose of paying his 
subscription. 

(3) Where subscriptions of members of societies, etc., are paid 
from funds contributed by the members and such funds belong to 
the society. 

(4) Where subscriptions by members of societies, etc., are made 
obligatory upon such members by the constitution or by-laws of the 
society. 

However, so far as subscriptions of members of societies are con- 
cerned, the following are regarded as meeting the requirements of 
the law: 

(1) Members subscribing to the publisher direct and paying 
therefor independently of any dues or fees of a society. 

(2) Members subscribing through the officers of societies and 
paying therefor independently of any dues or fees of the societies. 



42 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

(3) Where the constitution and by-laws make special provision 
for the payment of dues with and without a subscription to the 
publication, provided the dues without the "publication are an amount 
materially less than the dues with the publication. 

In all cases it must appear that it is left to the option of the 
member whether he will subscribe or not. The subscription must not * * 
be forced or made obligatory upon him. 

In the enforcement of this policy, no drastic or harsh measures are 
employed. The steady effort of the department is to administer the 
law with firmness, but in justice, and with leniency in deserving 
cases. Where such a publication has already been admitted, and has 
been cited for apparent lapses, it is given a reasonable opportunity 
to take the proper corrective steps and bring about right conditions 
under the law, and there is never a revocation of an authorization 
until this opportunity has been disregarded and the required correc- 
tion has gone by default. If a new publication seeks admission but 
appears not to conform to the requirements of the statute, and the 
publisher shows a disposition to meet such demands, all reasonable 
instruction and indulgence are extended to the end that loss of time 
and money and embarrassment may be spared the publisher. The 
policy of the department is not to keep out publications, but uni- 
formly to insist that they seek and obtain admission through the 
channels prescribed by law and not according to individual caprices 
or organization schemes which are in conflict with the purpose of 
Congress in conferring the benefits of the second-class mail privilege. 

*s!> si/ «1* *X* «!• *Jr" 

^^ *f+ *f» *r» *T» *T* 

I shall be glad to consult with you personally in reference to this 
case, as suggested by you, upon your return to Washington. 
Respectfully, 

A. M. Travers, 
Acting Third Assistant Postmaster-General. 



Exhibit I. 

Correspondence with Mr. S. D. Williams, president the National 
Fraternal Press Association, relative -to (1) the carrying of com- 
mercial advertisements in publications entered under the act of 1894; 
(2) the carrying of stories, serials, and household or fashion depart- 
ments in such publications. 

National Fraternal Press Association, 
Section of National Fraternal Congress, 

Office of the President, 

Detroit, Mich., January 29, 1909. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, Washington, D. C. 

Dear Sir : The managers of some of the fraternal publications who 
desire to keep within the provisions of law governing their publica- 
tion and distribution have asked me what the ruling of the Post-Office 
Department was in the recent case of the Modern Woodman. Not 
knowing, myself, I am asking you to kindly give me your ruling in 
the matter. As I understand it you ruled that that journal could 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 43 

not carry commercial advertising in its columns; and, second, that 
it could not publish stories or serials or a household or fashion depart- 
ment or any other matter not directly pertaining to the work or 
interest of the order. I will greatly appreciate and thank you for any 
information you may give me on the matter. 

Thanking you in advance for your favor I remain, 
Yours, very truly, 

S. D. Williams. 

February 3, 1909. 
Mr. S. D. Williams, President, 

The National Fraternal Press Association, 

302 Whitney Building, Detroit, Mich. 
Dear Sir: In reply to your letter of the 29th ultimo, asking to be 
informed of the ruling of the Post-Ofnce Department in the recent 
case of The Modern Woodman, you are informed that the facts in 
this case that came to the attention of the department were that 
there was not for this publication a "legitimate list of subscribers" 
as required by the law (act of March 3, 1879), under which admission 
of the publication to the second class of mail matter was sought at 
Rock Island, 111., and it further appeared that the paper, by reason of 
its methods of circulation, came within the following prohibition of 
the statute: 

Provided, however, That nothing herein contained shall be so construed as to admit 
to the second-class rate regular publications designed primarily for advertising pur- 
poses, or for free circulation, or for circulation at nominal rates. 

A hearing was accorded the publishers in the matter, and subse- 
quent thereto they filed an application for admission of the publica- 
tion under the act of July 16, 1894 (see sec. 429, p. 7 of the inclosed 
pamphlet), which makes special provision for admission to the 
second class of mail matter of publications issued by or under the 
auspices of benevolent or fraternal societies, etc., and which are 
originated and published to further the objects and purposes of such 
society. This act does not require that a publication to be admissible 
thereunder have a "legitimate list of subscribers." 

In regard to the carrying of advertisements in publications entered 
as second-class matter under the act of July 16, 1894, you are in- 
formed that in an opinion rendered by the Assistant Attorney- 
General for the Post-Ofnce Department under date of January 24, 
1901, it was held that advertisements in the interest of other persons 
or concerns than the society, etc., publishing the paper are not 
permissible in a publication entered as second-class matter under the 
above-mentioned act. 

As to the statement that a ruling was made in The Modern Wood- 
man case that it "could not publish stories or serials or a household 
or fashion department or any other matter not directly pertaining 
to the work or interest of the order," you are informed that the 
information you have obtained is entirely erroneous and this question 
was not passed upon in the case in question. 
Respectfully, 

Third Assistant Postmaster-General. 



44 SECOND-CLASS MAIL— LETTERS, EXHIBITS, ETC. 

Exhibit J. 

correspondence with mr. s. d. williams, president the national 
fraternal press association, and mr. clinton c. hollenback, 
secretary-treasurer the national fraternal press associa- 
tion, relative to the entry of fraternal publications as 
second-class matter. 

National Fraternal Press Association, 
Section of the National Fraternal Congress, 

Office of the President, 
Detroit, Mich., June 10, 1909. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, 

Washington, D. C. 

Dear Sir : Since your ruling in the case of The Modern Woodman 
I have been asked by the publishers of many fraternal papers what 
the effect of the ruling was on fraternal publications entered in the 
mails under the law of 1879 and previous to the enactment of the 
law of 1894, which have never changed their places of entry or sought 
admission to the mails at any other office than the original one. 

There are many publications such as the Sovereign Visitor, the 
official organ of the Woodmen of the World; the Bee Hive, which is 
the official organ of the Knights of the Maccabees of the World, and 
the Modern Maccabee, the official organ of the Knights of the Modern 
Maccabees, which were entered several years before the act of 1894 
was passed. What I would like to know is: Have these papers men- 
tioned the right to carry advertising in their columns ? I understand 
that their methods of circulation and their subscriptions are the same 
in character as that of The Modern Woodman. 

The publishers of these papers have all expressed a desire to keep 
wholly within the limitations of the law, and you would greatly 
oblige me if you would kindly answer the above inquiries. 

Thanking you in advance for your favor, I remain, 
Yours, very truly, 

S. D. Williams. 



June 21, 1909. 
Mr. S. D. Williams, 

President the' National Fraternal Press 

Association, Detroit, Mich. 

Dear Sir: I have before me your letter of the 10th instant, in 
reference to fraternal publications entered under the act of March 
3, 1879, circulated in a manner similar to that of the Modern Wood- 
man, and asking if they may continue to carry advertisements. In 
reply I beg to advise you that such of those publications as are cir- 
culated as is the Modern Woodman are not properly entered under 
the act of March 3, 1879. As such cases come to attention the depart- 
ment is giving each consideration with the object of bringing them 
within the requirements of the law under which entry should be 
granted. 

I note your statement that the publishers of the publications men- 
tioned by you have expressed a desire to keep wholly within the 
requirements of the law, and I would be pleased to be advised if the 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 45 

publishers referred to, whose publications are now entered under the 
act of March 3, 1879, but which by reason of their method of circu- 
lation properly come within the provisions of the act of July 16, 1894, 
as is the Modern Woodman, will voluntarily take the necessary 
action to bring their publications fully within the law in order that 
such action may not be initiated by this office. In the event that 
any of these publishers so desire, the requirement of deposits pending 
action on the application for readmission of the publications under 
the act of July 16, 1894, will be waived upon request. 

With reference to any advertisements in the interest' of other 
persons or concerns than the institution represented by the paper 
that may now be carried in such publications, it is deemed proper 
to state that it is not the desire of the department to embarrass 
publishers by requiring the immediate elimination thereof, but a 
reasonable time will be given in individual cases within which their 
existing contracts may be carried out. 

In this connection I beg to hand you a copy of the letter addressed 
to C. C. Hollenback, secretary-treasurer of your organization, in 
which the attitude of the department relative to fraternal publica- 
tions is fully set forth. Although the views of Mr. Hollenback 
were requested on this subject, I have heard nothing from him in 
answer to this communication, and I take this opportunity of stating 
that I shall be glad to discuss this matter with you or any other 
representative of your association. 

Respectfully, , 

Third Assistant Postmaster-General. 



March 5, 1909. 

My Dear Sir: My attention has been drawn to an article in the 
Western Review for January, 1909, written by you under the cap- 
tion " Pound rates for fraternal journals." 

This article, and other statements to which my attention has been 
called by various publishers, leads me to believe that you have a mis- 
understanding as to the laws on the subject of second-class mail 
matter. I feel quite certain that you do not intentionally mislead or 
misrepresent, and in order that you may have correct information in 
the premises and thereby be put in position to correctly state the 
position of the Post-Ofhce Department in future, I address this letter 
to you in a fraternal spirit. 

In the article referred to appears the following statement : 

On December 5 last the Postmaster-General made a ruling, which was the second 
of a series of rulings on the same subject made by his predecessors in the last decade 
on the sample-copy question, and in making this ruling the Postmaster-General 
neglected to except from this dragnet the fraternal publications of America. This 
ruling put a new standard of qualification on publications entitled to pound rates 
and generally stated that they must be publications not designed primarily for adver- 
tising purposes and must have a bona fide paid subscription list. In other words a 
publisher under this ruling may not send copies of his paper to anyone who has not 
paid in advance, or contracted to pay in advance at a certain time in the future. 
All other copies must be sent at the rate of 1 cent per copy, or 1 cent for each 4 ounces 
or fraction thereof. 

If the foregoing statements were intended to refer to publications 
entered under the act of July 16, 1894, as the other matter in the 
article quoted from would seem to indicate, they are wholly inac- 



46 SECOND-CLASS MAIL — LETTERS, EXHIBITS, ETC. 

curate and misleading, as there is no restriction in the act named as 
to the method of circulating publications admitted to the second 
class of mail matter under that act. Circulation may consist of sub- 
scriptions made pursuant to resolutions setting apart a part of the 
annual dues for the purpose, or it may be circulated entirely free, 
and there is therefore no limitation to the circulation of sample 
copies. The act of July 16, 1894, contains no restrictions whatever 
concerning method of circulation, as does the act of March 3, 1879. 

The act of March 3, 1879, provides that a periodical to be entered 
under it must be issued "for the dissemination of information of a 
public character," or " devoted to the arts, sciences, or some special 
industry," and "have a legitimate list of subscribers, " and further- 
more that it "must not be designed primarily for advertising pur- 
poses, for free circulation, or for circulation at a nominal rate." 

The act of July 16, 1894, was designed especially to benefit, among 
others, publications "by or under the auspices of a benevolent or 
fraternal society or order organized under the lodge system and hav- 
ing a bona fide membership of not less than one thousand persons," 
with the proviso that such publications "shall be originated and 
published to further the objects and purposes of such society, order, 
or trades union," etc. 

The former act restricts circulation; the latter does not, as sub- 
scription lists are not required. The only restriction surrounding 
publications admitted under the later act is that they may not print 
general advertising, but must be devoted exclusively to "the further- 
ance of the purposes of the order," as stipulated. 

Many fraternal publications, however, seek admission under the 
act of March 3, 1879, possibly in order to have the privilege of printing 
general advertising, but when so admitted they must be treated just 
the same as other publications admitted under the act of 1879. 
They can not claim any of the exemptions of the act of 1894. 

The real trouble is that many of the publications of the fraternal 
type want all of the good things of both acts and none of the limita- 
tions of either. 

If your remarks in the Western Review were intended to refer 
to fraternal publications entered under the act of March 3, 1879, it 
amounts to a plea for the privileges of the act of July 16, 1894, when 
not so entered. Manifestly, if a fraternal publication desires to in- 
dulge in free circulation and excessive sample-copy circulation, it 
can do so by securing admission thereof under the act of July 16, 
1894, which is specially designed for that purpose. However, a 
publication can not avail itself of the benefits of one law without 
also meeting the restrictions of that law. 

I think you will agree with me, after giving the matter full in- 
vestigation, that in fairness to all concerned — the Post-Office De- 
partment as well as the publisher — that the fraternal publications 
would better fill their spheres, of usefulness under the act of 1894, 
which was specially designed for them, than under the act of 1879, 
and it is the policy of the department to persuade the fraternal pub- 
lications to seek entry under this special act. 

You could be of great service to the department, and to the 
fraternal publishers as well, in this effort. 

I trust you will give the matter careful consideration in the light 
of the information here given, and advise me as to your views. If 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 47 

you come to Washington at any time in the near future, I trust you 
will call upon me so that we may have a full and candid discussion 
of the questions involved. I happen to be a member of several 
fraternal organizations, and I assure you that I have no prejudices 
to overcome. 

Respectfully, 

Third Assistant Postmaster-General . 

Mr. Clinton C. Hollenbeck, 

Secretary- Treasurer, 
National Fraternal Press Association, 

Columbus, Ohio. 



National Fraternal Press Association, 

Section of National Fraternal Congress, 

Office of the President, 

Detroit, Mich., June 24, 1909. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, 

Washington, D. C. 

Dear Sir: I have your letter of the 21st instant before me and in 
reply thereto will say that I thank you for the information you have 
given me. 

Further replying to your letter I will say that the Modern Maccabee 
has run no advertising of a commercial nature in its columns for 
the last two months and does not intend to do so as long as the postal 
laws and the ruling of the Post-Office Department remain as they are. 

I wish to thank you for the copy of the letter written to Mr. Hollen- 
beck. He has recently assumed the general managership of a daily 
newspaper and I judge he has been pretty busy with his new duties. 
I will call his attention to your letter and his failure to answer it. 
I would prefer to have him finish the discussion started by him and 
with which he is more familiar than I. 

Thanking you for your favor, I remain, 
Yours, very truly, 

Stephen D. Williams, President. 



Columbus, Ohio, June 25, 1909. 
Hon. A. L. Lawshe, 

Third Assistant Postmaster-General, 

Washington, D. C. 
My Dear Sir: Hon. S. D. Williams, the president of the National 
Fraternal Press Association, has just called my attention to the fact 
that your letter of March 5, taking up the matter of my article pub- 
lished in the Western Review for January, 1909, has not been answered. 
I beg to inform you that the same will have my early attention. The 
delay was caused by reason of the reference of the letter to Mr. 
Wiljiams. 

Yours, very truly, The Press-Post, 

C. C. HOLLENBACK, 

General Manager. 



48 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

Exhibit K. 

A copy of the Modern Brotherhood, published at Cedar Rapids, 
Iowa, dated November, 1909. 



Exhibit L. 

A copy of the Lady Maccabee, published at Port Huron, Mich., 
dated February, 1910. 



Exhibit M. 

COPY OF THE OPINION OF JUSTICE BARNARD, OF THE SUPREME COURT 
OF THE DISTRICT OF COLUMBIA, IN THE CASE OF THE CHICAGO BUSI- 
NESS COLLEGE, PETITIONER, V. HENRY C. PAYNE, POSTMASTER- 
GENERAL, ET AL. 

[Circular XVII.— Mandamus proceedings against the Postmaster- General in case of Business Educa- 
tion, published by the Chicago Business College, Chicago, 111.] 

The following is the full text of the opinion rendered by Justice 
Barnard in the above case: 

In the supreme court of the District of Columbia. 

The Chicago Business College, Petitioner, ] -^- 4 „ 1fi 

v. ) j ' 

Henry C Payne, Postmaster-General, et al. J 

There are two questions in this case which have been presented by 
able arguments and which have been carefully considered by the 
court. 

The first is as to the construction of the act of Congress of July 16, 
1894, admitting to the mails certain publications issued by, and to 
further the objects and purposes of, certain societies, orders, or 
institutions of learning at the rate of second-class matter. 

The second arises only in case the court should hold that the ruling 
of the Post-Office Department was erroneous in its present con- 
struction of said act, and it would then be for the court to decide 
whether or not it had jurisdiction to correct such erroneous ruling, 
and direct by its writ of mandamus the Postmaster-General to permit 
the publication in question to be carried as second-class matter. 

No question is made as to the character of the publication itself. 
It is a weekly publication entitled "Business Education" and is 
issued by the petitioner, the Chicago Business College, in its own 
interest, and is distributed as a gift to its patrons and others in order 
to further its objects as a joint stock company conducting a business 
college for the financial benefit of its stockholders, who are its officers 
and teachers in its school as well. Its apparent purpose is to adver- 
tise the Chicago Business College and to encourage business education 
generally. 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 49 

The act in question is as follows: 

Provided, That from and after the passage of this act all periodical publications 
issued from a known place of publication at stated intervals and as frequently as four 
times a year, by or under the auspices of a benevolent or fraternal society or order 
organized under the lodge system, and having a bona fide membership of not less 
than one thousand persons, or by a regularly incorporated institution of learning, or 
by or under the auspices of a trades union, and all publications of strictly professional, 
literary, historical, or scientific societies, including the bulletins issued by state boards 
of health, shall be admitted to the mails as second-class matter and the postage thereon 
shall be the same as on other second-class matter and no more: Provided further , That 
such matter shall be originated and published to further the objects and purposes of 
such society, order, trades union, or institution of learning and shall be formed of 
printed paper sheets without board, cloth, leather, or other substantial binding, such 
as distinguish printed books for preservation from periodical publications. (28 
Stat. L., 105.) 

While private schools and other educational institutions are doing 
a great public good by instructing children and youth in many useful 
things, this act does not offer to them any cheaper rate of postage 
than that allowed to individual citizens, but does offer to the various 
public, or quasi-public, and fraternal or beneficial orders and asso- 
ciations named such facilities, and also offers the same to any 
"regularly incorporated institution of learning. 7 ' 

No question is raised as to the incorporation of the petitioner, 
although counsel stated, in oral argument, that one object of its 
incorporation under the general statute authorizing such incorporation 
in the State of Illinois was to give it the benefit of the cheaper postage 
as provided by the said act of Congress. Its work is similar to that 
of other business colleges, and these institutions are undoubtedly 
doing much good in the world by fitting young men and women for 
various positions of usefulness, and might with propriety be aided by 
being included with other public agencies in a list of those to be 
granted cheaper postage than the ordinary citizen or private firm or 
voluntary association; but the question before the Postmaster- 
General was, Is the business college such an " institution of learning" 
as Congress contemplated in its said act ? 

The benevolent or fraternal societies are required to have a member- 
ship of not less than 1,000 persons before they can have the benefit of 
second-class mail rates for their publications, and the publications to 
be admitted must be originated and published to further the objects 
and purposes of the society or institution. These two parts of the 
act indicate to my mind that the benefit to be granted was one to the 
public and not to the stockholders or members of any business organi- 
zation. In other words, the matter to be so carried was to be of a 
character that interested and benefited at least 1,000 persons, if the 
society was of a benevolent or fraternal character, organized on the 
lodge system, and if of the other characters named, that a large num- 
ber of recipients of the publications might be benefited by receiving 
useful information and instruction. It does not seem correct to 
conclude that Congress intended by said act to give any money- 
making corporation the right to cheaper rates of postage on adver- 
tisements for no other reason than to enable them to save on their 
expenses and thus make more money. 

Among the definitions of the word " institution" as given by Web- 
ster in his unabridged dictionary are these: 

An established or organized society; an establishment, especially of a public charac- 
ter, or affecting a community. 

25488— exhibits— 10 4 



50 SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 

The Standard Dictionary gives, among others, this definition: 

A corporate body or establishment instituted and organized for public use. 

It seems to me that such was the meaning which Congress intended 
should be given the word " institution " as used in this act, and did 
not intend to include in the words a a regularly incorporated institu- 
tion of learning" the various schools for special purposes existing 
all over the country, although they might be regularly incorporated. 

Suppose, however, there is some question about this being the 
proper construction, and that the court might well say that a business 
college teaching these useful branches calculated to give its pupils 
proficiency in writing, bookkeeping, and arithmetic (including, of 
course, shorthand writing and typewriting) was such an " institution 
of learning" as was intended by Congress in the wording of said act, 
would the law authorize the court to review and correct the judgment 
of the executive department of the Government whose duty it is to 
construe and execute the statutes relating to the mail ? Can the act 
of considering the meaning of a statute, where the same is not plainly 
worded, be considered a ministerial act 1 

If there was no question of construction here; if the Government 
admitted that the petitioner was in the class defined in the statute, 
but notwithsanding the Postmaster-General had insisted that its pub- 
lications should be excluded for some reason or policy of his own, then 
the court might not hesitate to exercise the jurisdiction vested in it 
and direct the executive officer to comply with the law; but where 
there is a question of construction, and judgment must be exercised 
by the executive officer in order to ascertain what is meant, then it 
seems to me there is no appeal to this court to correct such judgment 
in case the court might think the construction of the department was 
erroneous. (Decatur v. Paulding, 14 Pet., 497; U. S. ex rel. Dunlap 
v. Black, 128 U. S., 40; U. S. ex rel. Hall v: Whitney, 5 Mack., 370.) 
The act of the executive department complained of in this proceeding 
is the refusal of the Postmaster-General to allow the paper published 
by the petitioner to be carried at second-class rates; and this refusal 
is based upon the opinion of the Assistant Attorney-General for the 
Post-Office Department that a business college of the class of corpora- 
tions to which the petitioner belongs is not a " regularly incorporated 
institution of learning" within the meaning of said act. I fully agree 
with that opinion, but if I did not, sitting as a court having authority 
to compel the performance of a ministerial act, I should hesitate to 
issue a writ compelling the exercising of a judicial act, such as the 
construction of a statute is. If the courts should differ in judgment 
with the executive officers of the Government as to the meaning of 
the various laws the latter are charged with executing, and should 
compel them to follow the views of the courts in place of their own 
judgment, there would be a substitution of the judicial mind for that 
of the executive, and that is not contemplated under our Consti- 
tution. 

For these reasons, and without reviewing the various authorities 
cited or further prolonging this opinion, I will refuse to issue the writ 
of mandamus, and will dismiss the petition in this cause. 

Job Barnard, Justice. 



SECOND-CLASS MAIL LETTERS, EXHIBITS, ETC. 51 

The foregoing decision was affirmed by the cour^t of appeals of the 
District of Columbia in an opinion rendered December 3, 1903, in 
which the court said: 

* * * We think that it is not an ' ' institution of learning ' ' such as Congress had 
in view. We think the court below rightly so held. We think the Postmaster-Gen- 
eral was entirely correct in his view of the law and fully justified in his exclusion of 
the relator's publication from the privileges of second-class mail matter. It is our 
conclusion that the order appealed from should be affirmed with costs. And it is so 
ordered. 

Postmasters will preserve this opinion on file in order to be able 
to advise publishers who make inquiry, and thereby, as much as possi- 
ble, avoid correspondence with the department. 

Edwin C. Madden, 

Third Assistant Postmaster-General. 

Post-Office Department, 
. Office of the Third Assistant Postmaster-General, 
}Vashington, D. C, August 1, 1904. 



LB D 10 



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